that the world both learn'd and unlearn'd have hitherto believ'd that such a pursute as this would not be sustain'd in that though interest and malice did prompt men to such pursutes yet not one such as this has ever been intented for ought I could ever read save once at Grenoble where an Advocat did pursue a Smith to transport his Forge from the Chief-street because it did by its noise disturb not only him but the people who frequented that street from which pursute the Smith was absolv'd as Expilly observes in his Pleading Yet my Lords the Fishers upon Tweed want not some apparent reasons which give colour to the pursute and it is urg'd for them that no man is so Master of his own but that the Common-wealth has still an interest with him in it and Law being invented to protect the interest of Societies as well as to secure the property of privat persons therefore though every privat man inclines to satisfie his own humour and advantage in the use of what is his own yet it is the interest of the Common-wealth that he do not abuse his own property and therefore it is that the Law doth interdict prodigalls nor will the Law suffer that a man use his own in emulationem alterius l. 3. ff de oper pub and a man is said to do any thing in emulationem alterius when others looses more by what is done then the Proprietar can gain As in this case though quilibet potest facere in suo yet non potest immittere in alienum which is their case and all the Arguments brought for Haining do not meet seing they only prove that a man may use what is his own as he pleases ubi nihil immittit in alienum as is clear by the instances given of throwing down his own Wall or the digging up a Well in his own Land which differs very much from our case wherein Haining doth pour in his poysenous Water into the River of Tweed That men are restrain'd for the good of the Common-wealth in the use of their own property is very clear from many instances in our Law as men are discharg'd by Acts of Parliament to burn Mures to kill Smolts the way and manner of fishing upon Lochleven is prescribed to the Heretors by Act of Parliament and men are forbidden to steep lint by publick Acts likewayes Likeas the common Law will not suffer men so to use Water running through their own Land as that they may thereby prejudge Milns belonging to their neighbours which use to go by that Water and whatever may be alleadged in favours of any innovation in running Waters yet Lakes being appointed by Nature seem to have from Nature a fix'd beeing nor should they be opened to the prejudice of others contrary to their Nature These objections may my Lords be thus satisfied To the first it is answer'd that the only two restrictions put upon men in the free exercise of their own are ne in alterius emulationem fiat vel materiam seditionis prebeat as is clear by the foresaid l. 3. ff de oper pub neither of which can be subsumed in this case And when the Law considers what is done in emulationem alterius it acknowledges illud non factum esse in emulationem alterius quod factum est principaliter ut agenti profit non ut alteri noceat l. fluminum 5. ffin ff de dam. infect and the gloss formerly cited upon that Law determines that Animus nocendi is not presum'd if any other cause can be assigned and in this case Haining can ascribe his opening this Lake to the prejudice it did to his Land and to his Health whereas it cannot be alleadg'd that he ever exprest any malice against the fishers upon Tweed many of whom are his own Relations As to the instances given wherein the Law doth restrict the free use of Property the Principle is not deny'd but it is misapply'd For the Law only bounds the Proprietars power in some cases wherein his loss may be otherwayes supplied as in Mureburn and killing of Smolts at such a season of the year and in steeping Lint in running Waters which may be as commodiously done in standing Pooles but these Pursuers crave this Lake to be stopt at all times nor is there an apparent Reason here as there this Pursuit being sounded only upon a conjectural prejudice and in these cases the Prohibition is made necessar by the generality and frequency of Occurrences and yet though so circumstantiated there is still a publick Law necessar And when a publick Law discharges the free exercise of Property it ordains him in whose favours the Prohibition is to refound his Expences who is prohibited Nor is the Common-wealth here prejudg'd so much by this as it would be by the contrare for thereby all Coal-heughs Lead-mines and the winning of other Minerals would be discharg'd whereas it is uncertain if this water chaseth away the Salmond which are at best but a casuality and which will go but from Tweed to other Rivers in Scotland for they cannot stay in the Sea Salmond-fishing is but an accident to Rivers but there being the common porters is their natural use Thus my Lords you see that we contend for what is natural to Rivers they for what is but casual we are founded upon the nature and priviledge of Property they upon meer conjectures The Lords enclin'd to sustain Hainings Defence but before answer they granted Commission for examining upon the place what prejudice was done For the Viscount of Stormont against the Creditors of the Earl of Annandail SECOND PLEADING Whether a Clause prohibiting to sell will prejudge Creditors THe deceast Viscount of Stormont having by his Majesties favour and his own industry acquired the Lordship of Scoon he did tailie the same to Mungo Viscount of Stormont and the Heirs-male of his body which failing to John Earl of Annandail and the Heirs-male of his body which failing to Andrew Lord Balvaird and the Heirs-male of his body and to prepetnat his own memory as the reward of his industry he did cause insert this Provision in the Charter and Seasine viz. That it should not be lawfull to the said Mungo to dispone or wodset any of the saids Lands so tailied or to do any deed whereby the saids Lands might be evicted or apprised from them without the consent of all the persons contained in that Tailzie or their Heirs which if they contraveened that they should ipso facto loose all Right or Title to the saids Lands and the Right should accress to the next Heir The late Earl of Annandail having very profusely and unnecessarily spent not only his own Estate but likewayes contracted debts for which the Lordship of Scoon is apprised this Viscount of Stormont as immediat Heir of tailzie craves that it may be declared that the Right to the said Lordship of Scoon is devolved upon him by the forsaid contravention and that he should
frugal because they hope their Estate may remain with their Posterity encourage not such as resolve to shake loose by their Prodigality what was establish'd by their wise Predecessours By favouring the Creditors Defences you will but gratifie the prodigality of Heirs or the laziness of Creditors whereas by sustaining my Clients pursute you will secure us as to our own pactions and as to your decisions you will perpetuat Noble Families and bound the Luxury of such as are to succeed The Lords sustain'd the Pursute and repell'd the Defences propon'd for the Oreditors For the Lady Carnagie and her Lord against the Lord Cranburn THIRD PLEADING Whether Tax'd-wards be lyable to Recognition My Lord Chancellor THe late Earl of Dirletoun having no Children besides two Daughters and having an Estate consisting of Lands in Scotland and England did very judiciously at first resolve to marry one of them in Scotland and the other in England and in pursuance of this design he bestowed Elizabeth the eldest upon William Earl of Lanerick Secretary of Scotland Brother to Duke Hamiltoun but which was more a person admir'd for his heroick Vertues and whose Alliance was courted at any rate by the most eminent Families of both Kingdoms The younger of these Daughters named Diana was match'd thereafter to the Lord Cranburn and as the Earl of Lanerick could not but have justly expected all or at least the far greatest share of that Estate So the Lord Cranburn could scarce have expected thereafter any thing above an ordinar Portion Yet such is the capriciousness of old men that the Earl of Dirletoun did in anno 1649. by the impressions of some who were inveterat enemies to the Family of Hamiltoun dispone the Lands of Innerweek Fenton c. failing Heirs-male of his own body to Iames Cecil his Grand-child and the Heirs-male of his body His Majesty finding that the said Estate was most illegally dispon'd to Iames Cecil without His consent as Superiour they holding Ward of Him and that he had thereby defrauded the just expectations of so worthy a person as the Earl of Lanerick and so the Lands recogniz'd by the said Disposition did gift the saids Lands to the Lord Bargeny for the behoof of the Earl of Lanerick upon which Gift of Recognition there is now a Declarator pursued by the Lady Carnagie eldest Daughter to the said Earl of Lanerick who thereafter became Duke of Hamiltoun wherein she craves that it may be declar'd by you that she has the only Right to these Lands There are very many Defences propon'd for the Lord Cranburn which I shall endeavour thus to satisfie The first is Recognition has only place in feudo recto proprio whereas these Lands hold Tax'd-ward in which manner of holding all the casualities are taxed to a very inconsiderable sum which sum is designed to be the only advantage that shall accress to the Superiour and the reason why Ward lands recognize when they are sold without the Superiours consent is because the Superiour having so great interest in the Lands which hold by simple Ward as to have the Ward and Marriage of the Vassal the Law did therefore obliege him not to alienat that Land without the Superiours consent which reason ceaseth where the Ward is tax'd the Superiours interest becoming very inconsiderable by the Tax nor can it be imagin'd but that the Superiour having dispensed with the great casualities of Ward and Marriage has consequently dispensed with the said restraint Cui datur majus datur minus praesertim ubi minus inhaeret majori est ejus accessorium For satisfying which difficulties your Lordships will be pleas'd to consider that our Law appoints all Ward-lands to recognize if sold without the Superiours consent and makes no distinction betwixt simple and tax'd-ward the general is founded upon express Law and there is no express warrand for excepting tax'd-ward 2. Seing these Lands could not have been fold before they were tax'd by what warrand can they be sold since they were tax'd Seing though the casualities of Ward and Marriage were tax'd and thereby these casualities expresly remitted except in so far as they are tax'd yet there is no power granted to sell without the Superiours consent Nor is that priviledge remitted by the Superiour Et fendum alteratum in una qualitate non intelligitur alteratum in aliis actus agentium non operantur ultra concessa 3. The power of selling without the consent of the Superiour is different from the casualities of Ward and Marriage which are here only tax'd for Fewholdings are oft-times burdened with this restraint and this restraint was of old taken off expresly by warrands under the Quarter-seal without taxing the other casualities So that this priviledge differs from these and the one cannot be comprehended under the other The second Defence is that by the Feudal Law Recognition ob alienationem feudi est crimen delictum feudale against which error etiam probabilis ignorantia excusat as is clear lib. 2. tit 31. The words are Quod enim dicitur alinatione feudum aperiri domino intelligendum est cum à scientibus alienatum est beneficium which are the words of the said Law whereupon Socinus reg 153. though he do give it as a rule that Emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit conform to the civil Law l. ffinal C. de jure emphyteutico he subjoyns these words Fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam and accordingly Craig de recognitione lib. 3. diages 3. and in the case of disclamation lib 3. diages 5. layes down for an undoubted principle that ignorantia crassa excusat feudalia delicta And here the subject of the question is not in jure in thesi whether Ward-lands should recognosce but in facto hypothesi his Right being of the nature and in the terms foresaid he might dispone without hazard as to which an error in him who was an illiterat man was very excusable especially having consulted Peritiores and having been assur'd by very eminent Lawyers that there was no hazard in disponing those Lands without the Superiours consent they holding Tax'd-ward which was sufficient to have defended him in feudo amittendo To which it is answered that ignorance of the Law excuses no man and the case having been at best dubious the Vassal should not have hazarded upon what the Law might construct to be a disowning of his Superiour and since every man is oblieged to know the nature of his own Few the Law doth presume that every man doth know it Nam quod inesse debet inesse presumitur and therefore Craig doth very well conclude pag. 344. tit de recognitione that ignorantiam pretendens vix audiendus est cum sit crassa ignorantia feudi sui conditionem ignorare and though he observes there that excusabitur qui feudum suum non militare credidit cum militare est yet that cannot be
cannot be stronger as to all crimes then a particular Remission is as to one But so it is that a particular Remission can only dispense with the Princes Interest nor doth it cut off the Pursutes of privat persons as the former Law observes very well and the Emperor in another Law tells us Nec in cujusquam injuriam beneficia tribuere moris nostri est l. 4. c. de emancip libero From these grounds your Lordships have an easie and just prospect of the answers which may be made to the instances adduced for we are not in the case of such as obtain Gifts from the present Exchequer nor Rights from Heirs once lawfully serv'd for the jurisdiction whereby these Rights are establish'd are not funditus taken away nor were the singular Successors oblieged to know the Sentences whereupon their Rights were founded to have been null as E. C. was in this case nor can this prejudge Commerce except among such as are oblieged to know the grounds of their Commerce to have been unwarrantable and Rapines and Violence sunt extra Commercium which is so far from being an absurdity that it is an advantage for this may help to stop all Commerce amongst Rebels and Usurpers and to loose these cords by which they are tyed and from this I beg leave to represent to your Lordships that by this decision you will do more to hinder Rebellion and to encourage Loyalty then Armies can do for since no man will hazard hanging and damnation by Rebellion without he be baited to it by the certain expectation of a Prey So if Rebels find that they can never be secure of any Prey so obtain'd they will certainly neither be so eager to have such as are Loyal forfeited nor so desirous to settle upon themselves Estates so rob'd As to that principle that whatever defect was in the Title here yet there was none in the numeration of the money and defects in the numeration are only objected against singular Successors It is answered that vis est vitium reale afficit rem ipsam licet transierit per mille manus And this original sin insects the whole issue for the States could not transmit a better Right then they had themselves nemo potest tribueri alteri plus juris quam ipse in se habet and Plin. lib. 3. epist. 9. informs us that Caecilius Classicus having robb'd the Province which he commanded and having payed his Creditors with the sums extorted pecuniae quas creditoribus solverat sunt revecatae But though this might be alledged where there remains still some colourable Title in the Author and where the singular successour was not oblieged to know the defect yet in this case it can never be pretended by E. C. whose Right is funditus taken away and who was at the time the mony was assign'd or was numeâ— at to him oblieged to know that defect in his Right which is now the ground of this restitution I shall not trouble your Lordships with answering those objections founded upon the Earl of Forths ratifying and homologating his own forfeiture by giving in a Petition 1647. when he was content to accept back his Heretage without these sums for it is known that Petition was not sign'd by himself nor did he ever appear before those Usurpers and what was done by his friends cannot bind him especially whilst that Usurpation continu'd under which he first suffered nor to the Act 1662. wherein some Intrometters are declared free for that Act was only conditional and upon provision that His Majesty should pay the Earl of Forths Successors 15000 Pounds Sterling out of the Fines which condition was never purified and I wish it had for that was much better then what is here expected these grounds are such upon which none but such as are ready to drown would fasten But my Lords if I needed to prepossesse you with what the Parliament designed in this restitution I might easily clear that they design'd these Intrometters should be lyable for when Duke Hamiltoun and the Earl of Errol were absolv'd as the immediat Debitors it is very well known that they were absolv'd upon expresse Provision that they should deliver to the Earl of Forths Successors such Papers as might prove the intâ—omission of these Defenders which had been unnecessar if the Intrometters had not been liable and the reason why these Debitors were absolved had been groundlesse if Intrometters had not been liable But to what purpose should the Parliament have restor'd Forth if they had not design'd the Intrometters should be liable For the Parliament knew that there was nothing else which could have been reach'd by this restitution except these moneys now pursued for and so their Justice had proved an aâ—y and empty Fanfara bringing nothing with it but the occasion of certain spending upon an uncertain expectation to avoid all which debate the Parliament have expresly ordain'd the first Debitors to produce these Papers for proving against these Intrometters who are hereby declared lyable which words are so expresse that they preclude all cavil as well as difficulty This being the nature of our Pursute and these the answers to any pretended difficulties It is humbly recommended to your Lordships to give a testimony of your hatred against those violent courses formerly practised and to teach Posterity what such invasions may expect I know well that no man has deserv'd better of His Majesty then E. C. hath of late and I hope that when you have decided against him he will heartily acquiesce to your Sentence as a furder proof of his sincere Loyalty Nec tollitur peccatum nisi restituatur oblatum I confesse that he did not yield to those impressions till they had overcome the whole Nation and that nothing but the perswasion of his being then employed in the service of his Conscience and Countrey could have with-drawn him from the service of his Prince But this can plead no further then that his Prince should pardon these escapes not that he should reward them especially to the prejudice of His faithful Friends The Lords sustain'd the Pursute and repell'd the Defences A Debate in favours of the Earl of Forth against E. C. NINTH PLEADING How far a person unjustly forfeited and restored may repeat Annual-rents from the Intrometters IF I were not my Lord Chancellor very confident of the Justice of my own Cause and of your Lordships Learning as well as Integrity I should be somewhat jealous that the learn'd discourse you have heard in favours of my L. C. might leave some impression But my Lord I think it impossible that any beside those unjust Judges who forfeited the Earl of Forth of his principal Sum would again forfeit him of his Annual-rents nor do I imagine that even those would have done it if they had not been distemper'd by their own feaverish zeal and that national fury so that if your Lordships should folow their example you should share their guilt but want their
excuse It is my Lord now alledg'd that E. C. is not liable in payment of Annual-rent to the Earl of Forths Successours because Money is of its own nature res sterilis and in Law bears not naturally Annual-rent and therefore an Intromettor though predo though male fidei possessor is not liable for Annual-rent for no man is oblieged to improve another mans Money and by the civil Law which was more ready to give Annual-rents then ours In corporibus ex quibus fructus naturaliter proveniebant malae fidei possessor was liable in fructus productos but in corporibus quae non producebant fructus de sua natura nec predo nec latro tenebatur in fructus and though a person who impropriated publick Money was punishable ratione repetundarum vel ex residuis and so was there most unfavorable of all Intrometters yet he was not liable in usuras nor by our Law are Annual-rents ever due sed ex lege vel ex pacto neither of which can be alledged in our case and the Act of Indempnity hath made Intrometters with publick Money liable in repetition and though their intromission be most unwarrantable yet are they not made liable by that Act in Annual-rents Likeas though these Moneys due to the Earl of Forth did at first bear Annual-rent yet they being once uplifted became a sum lying in Cash which E. C. was not oblieg'd to re-imploy upon Annual-rents and by the Act 1662. whereby His Majesty was to repay the Earl of Forth he was only to be repayed of his principal sum but not of his Annual-rent To which my Lord it is answered for the Earl of Forth That since your Lordships have found E. C. his Title to have been unjust we must debate now against him tanquam at least male fidei possessorem for the Act of Parliament has declared this forfeiture an invasion upon His Majesties Prerogative and you have by your Sentence found it not to be shelter'd under the Act of Indempnity Let us therefore in the first place consider that the Law never design'd to favour oppressors nor suffer the innocent to be prejudged it never design'd that men should enrich themselves by their guilt and be rewarded for their violence And since the fear of punishment is scarcely able to restrain that wickedness to which we are naturally prone it were absurd to highten our vitiousnesse by rewards whereas if malae fidei possessores should not be lyable to repay Annual-rents they should be enrich'd by their oppression and should be baired to commit violence and to maintain themselves in it for they should be sure lucrari at least usuras rei per vim injuste ademptae And therefore my Lords though the Law makes a distinction Etiam in malae fidei possessore inter corpora ex quibus fructus naturaliter proveniunt corpora sterilia yet they do not this upon design to favour vitious or violent Intrometters but in order to the several wayes of taxing the restoration of the person injured for where the Bodies unjustly intrometed with bear fruits they ordain the fruits to be restor'd but where they bear not naturally fruits the Law doth not ordain the Intrometters to be free but to be lyable in damnum interesse in omnem causam this the Law defines to be all the advantage could have arisen out of the thing intrometted with this being an uncontraverted principle I humbly conceive E. C. should be lyable to these Annual-rents acclaimed and that upon these three considerations First This Sum intrometted with by E. C. was a sum bearing Annual-rent and therefore Forth being restored by way of Justice he ought to be put in the same case he was in before the forfeiture and if the money were now lying unuplifted Forth would be preferred to E. C. quoad these Annual-rents which clears that they were never due to E. C. and if they were not his he ought to restore them The forfeiture is declared to be no Warrant and so though E. C. were in the same condition as a stranger is who intrometts with another strangers Money without a Warrant yet sure he would be lyable in Annual-rents if he intrometted with a sum bearing Annual-rent much more then ought he to be lyable who hath intrometted with a sum which was unjustly and predoinously intrometted with For here E. C. is in the same case as if a man had broke my house and had taken away my Bonds with blank Assignations lying beside me and had uplifted for many years the Annual-rents of these sums or if a man had upon a false token taken up my moneys which bear Annual-rent in which cases it is most undenyable that the vitious intrometter would be lyable in re-payment of the Annual-rents and to invert one of the Defenders own instances it is not imaginable if any should uplift a sum belonging to a person lately forfeited and which did bear Annual-rent that the Exchequer would not exact Annual-rent from the Intrometter I might hear urge likewayes that a Minors money intrometted with bears Annual-rent by the civil Law and ours and it is most clear that pinguius succuritur restituto per modum justitiae quam minori as Bossius well observes tit de remed just num 3. Jason ad l. Gallus ff de liber postlim for as they are equal in that neither did consent to the intromission so he who is forfeited for his Countrey deserveth more favour then a Minor doth and many things are in Law allowed ob bonum Rei-publicae but we are not here in the case of corpus sterile for money bearing Annual-rent is not corpus ex sua natura sterile but habet fructus ex se facillimè provenientis usura est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu partus pecuniae and should rather be restor'd then fructus prediales ought to be for in these the Intrometter bestow'd his industry but here Annual-rent doth grow very easily and that Annual-rent is due even where it was at first sterilis is clear from § quid si l. item veniunt ff de haered petit quid si post venditam haereditatem hic ipse res venient fructusque earum sed si forte tales fuerunt quae vel steriles erant vel tempore periturae hae distractae sunt vero pretio tunc potest petitor eligere ut sibi pretia usura praestentur Upon which Law the Doctors observe that malae fidei possessor tenetur rem ipsam restituere si extet vel pretium usuras si non extet but much more where money bearing Annual-rent is â—ntrometted with for there the proper damnum interesse is Annual-rent and our Law calls Annual-rent the interest of money So that though the money had been sterile yet the vitious Intiometter would have been lyable in damnum interesse and the damnage and interest of money is Annual-rent nor is this money of the nature of that money which the Law makes sterilis
Parliament I. 6. Par. 11. whereby it is declared That their part of all general Taxations shall extend to the sixth part allanerly bears no such quality nor do the Acts of Parliament bear any such onerous cause But the true reason of their bearing the sixth part of the Kingdoms Burdens is because they are intrinsecally the sixth part of the Kingdom if we look either to the number or riches of their Inhabitants and if the Burghs-Royal were accounted the sixth part of Scotland under the Reign of King Iames the first how much more great a proportion are they able to bear now when the Burghs are six times more numerous and each particular Burgh six times more rich and populous then they then were Their Riches have encreased with our Luxury and the Luxury of our Age doth far exceed what it was in that Kings time So that since now the Nobility and Gentry only toil to get money to buy from Burgesses what they import from Forreign Countries I conceive those Burghs may easily bear a sixth of our burdens since once a year they get in all our Stock And to any thinking man it may easily appear that all the money in Scotland doth once a year circulat and passe thorow the hands of Citizens for money serves only either to pay our Annual-rents or buy us necessars and that which is payed for Annual-rents is by the receivers given out to others to satisfie their present necessities and all is ultimatly employed for Food or Rayment and little money is bestowed upon Food or Rayment in Scotland except only within Burgh Since then this Priviledge doth divide Scotland in two parts since equity in it seems to oppose Law and since both parties pretend to national advantages I shall humbly move that if this illustrious Senat be unwilling to interpose in so universal a difference that this Debate should be transmitted by them to the Parliament which is the full Representative of all the Kingdom and the natural Judge of equity and convenience The Session referr'd this Case to the Parliament who extended this Priviledge to all the Lieges For the Earl of Northesk against my Lord Treasurer-Depute TWELFTH PLEADING Whether a Novo Damus secures against preceeding Casualities My Lord President IT is one of the chief advantages of our Nation in this Age that we live under a Prince who covets more the hearts of his Subjects then their Estates and who loves rather to see his Laws obey'd then to have his Advocat prevail What measure then can his fisk expect when in general all Lawyers have even under Tyrants delivered as their opinion semper contra fiscum in dubio est respondendum And since flattery or fear may encline some to favour the Princes Interest too much it is fit that Judges should be jealous of theâ—â— own spirits in such cases and should bend them rather to the other side that they may fix at last in a straightnesse The case propos'd is whether the Novo damus not expressing the casuality of Marriage specially but all Casualities in generaâ— doth by our Law â—eâ—end against the Marriage That i◠〈◊〉 I presse for my Client upon these grounds Fâ—â—st a N 〈…〉 〈◊〉 is that which the Feudâ—lists call reâ—â—vaâ—â— feudi and 〈◊〉 feudi doth import liberationem ab om 〈…〉 caducitate nay the very nature of a Disposition or Alienation doth imply a liberation from any burden with which the Disponer could affect it else he should alienat and yet retain give and not give and therefore by the civil Law he who dispon'd Land was interpreted to have dispon'd it tanquam optimum maximum free from all the Disponer could lay to its charge If any person should dispone his Land to me and should thereafter crave a Ward or Marriage as due out of these Lands tanquam debitum fundi certainly it would be an absurd pursute and I would be absolv'd nay if a Superior enter me to my Lands eo ipso I am free from all preceeding casualities nor did ever a Vassal take Discharges at his entry of any former casualities but his entry was alwayes judg'd sufficient why then should not His Majesties Vassals be in the same condition for since this is clear in other Vassals ex natura feudi there being no Statute in their favours it must be due to all Vassals for à quatenus ad omne valet consequentia and that which is natural to Few's must be inherent in all Few's The design of a Novo damus is to secure the receiver against nullities the Law thought to set this as a March-stone and let not us remove it The stile of a Novo damus in our Law which is equivalent to expresse Law is very exactly adapted to this design as may appear by all its Clauses for when His Majesty de novo dat that Chartor must be equivalent to an original Disposition and sure if these Lands had belonged to His Majesty and if he had disponed them that original Right would secure the receiver against all His Majesty could crave out of these Lands except in so far as he did expâ—â—sly reserve at the making of the Disposition nor do I see 〈◊〉 reservations of former Rights were necessar in Dispositions if these Rights were reseâ—v'd without them and if they were not cut off by the Alienation it self But not only doth this Novo damus dispone in favours of my Client the Land out of which these casualities are sought but it dispones them cum omni jure titulo interesse jurisclameo tam petitorio quam possessorio quae nos aut predicessores aut successores nostri habuimus habemus vel quovis modo habere possumus in ad dictas terras What can be more expresse for if His Majesty had any claim to or right in these Lands any manner of way he here dispones it and transfers His Right in and to my Client if His Majesty have any Right at all it must be vel jus vel interesse vel jurisclameum and if it be either of those it is dispon'd But lest it might be pretended that this Clause extended only to secure the Property which is not its only effect as I shall clear hereafter Therefore the stile of a Novo damus bears omne jus non solum quoad aliquam ejus partem sed ad omnes census firmas proficua ratione wardae purpresturae foris facturae non introitus eschetae c. vel quocunque alio jure vel titulo From which general Clause I draw these inferences first that this general Clause must seclude His Majesty since tantum valet genus quoad omnia quantum species quoad specialia Bald. consil 1. lib. 3. Gemin consil 65. l. si duo ff de administ tut And therefore since a special gift of this Marriage would have secluded the King or His Donator a general concession must do the same especially since this general was designed to secure