other papers now produced by the Duke for clearing his interest That the claim of that Honourable Familie was only of the Office of Admiralitie of the Kingdom without any mention of the Isles and much less of Orknay and Zetland in so far as his Majesties Fathers letter 16 June 1628 of which the extract is produced doth bear That he had been pleased to sign a signature In favours of the Duke of Lennox of the Heretable Office of Admiralitie of this his Kingdom And in the Act of Parliament produced of the date 28 June 1633 Mention is made that the deceased James Duke Lennox stood Infeft as Heir to the said Lodovick Duke of Lennox in the Office of Admiralitie of this Kingdom without the least mention of Orknay and Zetland It appears by the Writs produced for the Duke That until the Earl of Mortouns Grand-Father obtained a gift and Right of Orknay and Zetland from his Majesties Father The Duke of Lennox's Right as to the admiralitie of Orknay and Zetland was ever questioned and controverted by his Majesties Officers In so far that upon the last of March 1628 The King did set a Tack of the Earldome of Orknay and Zetland To Archibalâ— Lord Naper Containing a Right likwayes of the Admiralitie within the Bounds of Orknay and Zetland And the Earl of Linlithgow having appeared in behalf of the Deceased James Duke Lennox The said Lord Naper Declaired that he should be ruled as to the said Right of Admirality according as his Majestie should declare his will thereanent whereas if the Dukes Right had been clear and unquestionable neither a Tack would have been set of the Admiralitie of Orknay and Zetland neither woulâ— there have been any Reference made to his Majestie But upon the Earâ— of Linlithgowes appearing and representation of the Dukes Right thâ— Clause of the said Tack as to the Admiralitie of Orknay and Zetland would have been Delet As to Possession the Earles of Mortoun have been in Possession of the Admiralitie of Orknay upon a Gift and Right from his Majesty ever since thâ— Earle of Mortouns Grand-Father obtained the Right of Orknay There is produced for the Duke The double of a Gift granted to the Earl of Linlithgow of the Admiralitie of the whole Kingdom of Scotland and Isles thereof and of the Lieutenendrie Justiciarie and General of the Sea with consent of the Deceast James Duke of Lennox and of his Curatorsf the said Earl being a Confident Person and Relation of the said Noble Familie And without prejudice of the Dukes Right But it is to be Considered that the said Paper is only a Double and not Authentick And the said Right is only Granted dureing the Minoritie of the said Duke of Lennox and is given upon a Supposition and Narrative of the Dukes Right Whereas no Right has been or for any thing that can be seen can be showen That the Dukes of Lennox have Right expresely of the Admirality of the Isles and of the offices of Lieutenendrie and Justiciarie As to the Priviledges and Casualities belonging to the Admiralitie of Orknay and Zetland it is represented that the Priviledges and Casualities of the Admiralitie are not specified nor defyned in any Charter or Record for any thing that does appear the Charter foresaid granted to Lodovick Duke of Lennox in Anno. 1603 bearing only as said is Cum Privilegijs commoditatibus eisdem Spectantibus And the Charter granted to Adam Hepburn Earl of Bothwell in the Year 1511 which is the most ancient Record of Admiralitie that we have seen bearing only the said Office of Admiral Totius Regni to be given to the said Adam Cum omnibus Libertatibus proficuis eschetis ejusdem without mention of the Isles of Orknay or Zetland or specifieing the Liberties and Casualities belonging to the Admirality It Appears by an Act of Parliament Intituled concerning certain abuses of the Admirals proceedings being 156. Act of King James 6th his 12. Parliament that upon pretence of an Infeftment granted to Francis Earl of Bothwell of the Admiralitie of Scotland containing greater Specialities and diverse Clauses which were not in the former Infeftments of Admirality The People being oppressed did Complain and by the said Act it is Statute that the Admiral and his Successors should exerce no Jurisdiction nor exact no Dutie nor Casualitie But that which was in use to be exercised and taken by the Admiral for the tyme before the Death of King James 5th And therefore it is humblie conceived that whosoever shall be found to have Right to the Admiralitie of Orknay and Zetland It is fit that the Priviledges and Casualites of the same be so defyned and cleared that the Fishing Trade and Trafficque be not interrupted nor disturbed And that his Maiesty be not prejudged of his Rents of Orknay It is humblie represented to his Majesties Consideration The Records being for the most part lost which might have cleared his Majesties Interest and the Right of Admiralitie being Granted to the Dukes of Lennox in manner foresaid and neither the Dukes Right nor the Right of Admiralitie granted to the preceeding Admirals being special as to the Isles of Orknay and Zetland and the said Isles of Orknay being the Kings Propertie and feued only to the Earles of Orknay and now Annexed to the Crown and the said Isles being so remote and of so vast an extent and formerlie possessed by the King of Denmark and upon Transactions with the said King which are not very ancient being reunited to this Kingdom Whether or not the Right of Admiralitie granted to the Dukes of Lennox ought to be extended to the said Isles of Orknay and Zetland FINIS THE DECISIONS OF THE LORDS OF COUNCIL and SESSION IN Most Cases of Importance Debated and brought before them from December 1665 to June 1677. OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the principal Matters in the said Decisions As also A List of the Pursuers and Defenders Names EDINBVRGH Printed by GEORGE MOSMAN and are to be Sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII DECISIONS OF THE LORDS OF COUNCIL and SESSION In some Weighty and Important Affairs before them Beginning the 7. of December 1665 and ending the 29. of June 1677. Decision 1st Veatch contra Duncan 7. December 1665. THE Clause cum molendinis multuris importeth freedom from astriction though it be only in the Tenendas Me referente D. 2. Burnet contra Leys 12. Decemb. 1665. THe said Mr Robert Burnet Son to Alexander Burnet of Leys being provided by his Grand-Father Sir Thomas Burnet of Leys his Father having deceased before To the Sum of 10000. Merks to be payed after his age of 25. Years with Annualrent after that time conform to a bond pursued his Nephew Leys for the Annualrent of that Sum at least for an Aliment until he should attain to that age Upon that ground That he could
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
the Right of Lands and in effect a reversion which is not prestable by Executors It was Answered that the said Bond tho on death-bed may and ought to affect the Executry seing in Lecto the Defunct might doe any deed to burden his Executry And his obligements at that time are effectual as to his Executry And Loco facti imprestabilis succedit interesse which is prestable by Executors And if he had in leige poustie granted a Disposition of Lands and thereafter having Infeft ane other in the same he had become incapable to fulfil the obligements thereof both his Heir and Executor would be lyable for damnage and interest and there is the same reason in this case the Defunct as to burdening and disposeing of his Executry being in the same condition as if he were in leige poustie The Lords before Answer thought fit to try if the Right was in trust and if there had been a former Back-bond which the Pursuers Step-Mother had destroyed as was informed and certain other circumstances Gibson Clerk D. 158. Lord Maxwel contra Tennents of Duncow 16. Feb. 1672 FOund that the Defence upon the Acts _____ against these who during the dependence of Process invade or wound the adverse partie who by the said Acts tyne the cause and forfault their interest in question being in effect penance and founded upon delinquency may be proven even before the Lords prout de Jure as to Order and Ratihabition which was alleadged could not be proven by Witnesses to import the loss of Heretage D. 159. Commissaries of Edinburgh contra the Commissaries of Breichen 17. Feb. 1672. THere being a competition betwixt the Commissars of Edinburgh and the Commissars of Breichen to which of them the confirmation of the Earl of Panmures Testament should belong the said Earl having taken a House and stayed a whole Session in Edinburgh with his Lady Children and Familie in order to the breeding of his Children and other occasiones and having died there The Lords preferred the Commissars of Breichen being Commissars of the place where the said Earl had his principal dwelling and his interest and Estate D. 160. Lady Milnetoun contra Sir John Whytfurd 20. Feb. 1672. IN the Process at the instance of the Lady Milnetoun against Sir John Whytfurd the said Sir John after the Process had depended long and all endeavours to delay and prevent a Decision having insisted upon a Reprobator upon that head that the Ladyes Wittnesses were corrupted It was Alledged and urged by many arguments that a reprobator upon the ground foresaid after sentence in foro contradictorio which is the great security of the People could not be proven but scripto vel Juramento And accordingly the Lords Found that it was only probable that way and yet this day the Lords having again ordained the cause to be Debated as to the point foresaid anent the probation of corruption after sentence obtained they retracted their former Interloquitor and Found that Reprobators upon the head foresaid are receiveable and probable prout de Jure after Sentence These arguments were urged both at the Barr and in the Debate among the Lords viz. That Sentences in foro are the great Security of the People and if these should be convelled upon pretence of such personal exceptions against Witnesses there should not be a period of Pleas and Process 2. Upon the consideration foresaid many exceptiones which are admitted before sentence even after Litiscontestation are not recieved after sentence v. g. exceptiones noviter venientes ad notitiam and ex instrumentis noviter repertis 3. Prescription being the great security of the People ne dominia sint incerta should be weakened if after Decreets in foro founded upon 40. years purchase the same should be convelled upon probation by Witnesses that the Witnesses upon whose Testimonie the Decreets proceeded were corrupted 4. There should be progressus in infinitum if the Testimonies of Witnesses should after sentence be reprobated by other Witnesses and after sentence in the Reprobator the Testimonie of the reprobatorie Witnesses should be reprobated by others sic in infinitum 5. Reprobatores were only in use when the Designation of Witnesses before they declare from their duelling and vocation and other circumstances was questioned as false which being obvious and easie to be knowen It is not to be presumed that the reprobatorie Witnesses will declare falsely anent such points which may be easily tryed But the Corruption of Witnesses being ane occult and unwarrantable practice it is not to be presumed that witnesses were present and conscious and the reprobatorie Witnesses may be suborned and declare falsely impune 6. Our Law is Jealous of Probation by Witnesses they being for the most part viles personae and yet habiles and Writes cannot be taken away by such probation and Sentences in foro are scriptura publica solennis 7. By our practique dicta testium cannot be questioned post sententiam tho by the comon Law and the Law of other Nations they may and there is less reason to admit personal exceptions contra testes to be proven by Witnesses 8. As to the Incommodum That a Door should be opened to Corruption if the Testimonies of Witnesses after Sentence should not be questionable upon that head It is easily Answered Seing Witnesses may be pursued Criminallie and severely Punished if they may be discovered to have been Corruped or false Actores Cuninghame Lermonth alteri MckenÈie Harper D. 161. Mr. James Reid contra the Lady Dundie Feb. 21. 1672. AN Infeftment granted to the Lady Dundie by her Husband in recompence of a former provision she had by her Contract of Mariage and which she had renounced was questioned by a Creditor who also was Infeft upon that ground that the Ladyes Right was base and tho Rights granted to Wives upon their Contract of Marriage or after Marriage when they have no provision or in recompence of former provisiones are sustained albeit base because the Husbands possession is the Wifes possession yet the Right in question ought not to be sustained upon that ground In respect the Husband was not in natural possession the Lands being lyferented by his Mother and by the Act of Parliament the possession whereupon base Rights are sustained is only to be understood of natural possession The Lords preferred the Lady and repelled the said Defence upon these considerations that Infeftments given to Wives in the cases above-mentioned are construed to be publick and are not persumed to be fraudulent And Wives are not in the condition of other Creditors who may perfect and make their Rights publict whereas Wives can do nothing themselves and it is to be presumed that Wives are provided by their Husbands So that these who are to acquire Rights from them ought to enquire if their Wives be Infeft specially seing since the Act of Parliament 1617 anent registration of seasings they may easily know the same Cuninghame c. and
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
Right as said is both before his own Right and after the same and before the interest of Creditors he did in effect ratify and homologate the same by making payment conform thereto as said is The Lords In Respect the case was of moment as to the Preparative Ordained that it should be Debated amongst themselves And upon the Debate they decided these points 1. That the said Act of Parliament K. Ja. 5th being general and there being no Exceptions of Infeftments of Relief the said Act is comprehensive of the same 2. Tho the Act of Parliament anent Registration of Seasings does secure Singular Successors yet the said Act of Parliament K. Ja. 5th is not taken away tho in in some cases the Lords are apt to favour prior Infeftments where there is no presumption of Fraud And therefore when there is any pretence of Possession as in the case of Infeftments of Warrandice they Found that fictione Juris the Possession of the principal Lands is the possession of the Warrandice 3. That albeit Mr. Patrick could not question Cramonds Right for the Reason foresaid yet the Comprysers being Singular Successors may question the same The Lords therefore preferred the Creditors And yet sustained Cramonds Infeftment In swa far as concerns the Sum foresaid due to himself and not as to Cautionries In respect the said Discharge was only of the Annualrent of the Sum due to himself This Decision appears to be hard upon these Considerations First Because Cramonds Infeftment tho base as to the point of Right by the Common Law is preferable And as to the said Statute it introduces only a praesumptio Juris that base Infeftments not cled with Possession are presumptively fraudulent And the Question whether Cramonds Infeftment was fraudulent was to be considered in relation to Mr. Patrick and his Infeftment and not to his Successors And the said presumption was taken away by Mr. Patrick his Deed foresaid having corroborate as said is Cramonds Infeftment which was verified by a Write Subscribed by Witnesses and which was was Found to militate even against the Creditors and to cloath Cramonds Infeftment with Possession 2. Cramonds Right being Jus individuum tho upon distinct Grounds it could not be fraudulent and private ex parte and ex parte publick Actores Sir John Cuninghame c. alteri Lockheart In praesentia D. 462. Mr. John Kincaid contra Gordon of Abergeldie eod die MR. John Kincaid having pursued Gordon of Abergeldie as representing his Father by Behaving His Defence was That he had Right by an expired Comprysing whereby his Father was denuded so that he could not be Heir to him But in the same Process in respect a Reduction and Declarator was intented at the said Mr. Kincaid's instance within ten Years after the appearand Heir had purchased a Right to the said Comprysing The Lords tho there were no Order used did simul semel sustain the said Processes and appointed Compt and Reckoning and Auditors FINIS ERRATA in the Decisions PAge 4. lin 15. read rata p. 9. l. pâ—nult Pursuer 1 Person p. 15. l. 29. Laird of r. Lord. p. 17. l. 17. after him add but. ibid. l 26. after of add â— p 33 l 7. after Goods add The Reason was found relevant p. 35. l 21. r. conclude p. 37. l. 5. have 1. give p. 50 l. 9. after we add no. p. 51. l. 38. most r. more p. 54. l. 9. after anterior add to the Sones Right p. 58. l. 35. after Right add till p. 65. l. 11. purchase 1. possession p. 73. l. ult yet 1. so p. 74. l. 37. after to add an p. 75 l. 35. D ctor 1. Granter p. 84. l. 22 after confirmable add Quots of Testaments confirmed before the Act restoring Quots to the Bishops p. 85. l. 18. due r. done p. â—9 l. 18. after by add Writt or p. 105. l. 11. Donator r. Executor p. 108. l. 27. â—eu-duties r. Augmentations p. 111. l. 43. after Creditor add confirmed before the Act of Sederunt p. 17â— l. antep after flagitanti add â—eculaâ—e non potuit INDEX OF THE Pursuers and Defenders NAMES Mentioned in the foregoing Decisions A. ABercrombie contra Page 19. Abercrombie contra Atcheson and Livington Page 162. Aberdeen Colledge contra the Town thereof Page 130 133. Aberdeen Colledge contra Page 157. Abernethie contra Forbes Page 159. Act of Sederunt anent proponing Alledgances Page 74. Act of Sederunt anent liberation of Prisoners Page 114. Act of Sederunt anent Advocations Page 126. Advocats their â—â—int Petition Page 106. Aetskine contra Rynolds Page 164. Allan contra Campbel Page 28. Anderson contra Tarbet Page 56. Anderson contra Lowâ—s Page 149 160. Antrobus contra Anderson Page 32. Ardblair contra Wilson Page 214. Argyle Earl contra L Mcdonald Page 197. Argyle contra Menaughtan Page 203 213. Armstoun Lord contra Murray Page 153. Auchinleck contra E Menteath Page 127. Auchintoul contra Innes Page 88 B. BAillie contra Somervel Page 210. Bairdner contra Collier Page 142. Balmedie contra Baillies of Abernethie Page 54. Balmerinoch contra Tennents of Northbervick Page 90. Banchries Parochiners contra their Minister Page 124. Barclay contra Arbuthnet Page 151. Bavilay contra Dalmahoy Page 210. Bayne contra Carvie Page 71. Bernie contra Page 57. Bernie contra Montgomerie Page 137. Binnie contra Binnie Page 56. Binnie contra Sâ—ot Page 115. Binnie contra Brotherstones Page 124. Binnie contra Gibson P. 221. Binnie contra Farquhar P. 19. Bishop of Edinburgh his Executors contra the present Bishop P. 83. Bishop of Dumblain contra Kinloch P. 185. Bislet contra Broun P. 10. Blackwood contra Pinkill P. 221. Blair contra Blair P. 67. Blair contra Kinloch P. 151. Blair contra Fouler P. 182. Blantyre contra Walkingshaw P. 6. contra Blantyre P. 14. Bogie contra Executors of the Lady Oxford P. 73. Boid contra Storie P. 76. Bonars Relict contra his Representatives P. 141. Borthwick Lord contra Ker. P. 15. Borthwick Doctor contra E. Craufurd P. 161. Bowie contra Hamilton P. 18. Broun contra Veatch and Scot. P. 7. Broun contra Ogilvie P. 116. Bruce contra Bruce P. 132. Bryand contra Grhame P. 6. Buâ—hanan contra Logie P. 181. Burd contra Reid P. 118. Burgie Lady contra Strachan P. 39. Burnet contra Leyes P. 3. Burnet contra Johnston P. 9. Burnet contra Lutgrue P. 115. Burnet contra McCleilan P. 117. Burnet contra Swan P. 166. Burnet contra Gib P. 169. Bute Lady contra Sheriff thereof P. 7. C. CAmphel contra Tait P. 220. Carfrae contra TailÈiefer P. 104. Carnegie contra Durham P. 200. Carse contra Carse P. 17. Cassils contra Whiteford P. 24. Chalmers contra Ferquharson and Gordon P. 105. Cheap contra Philp P. 34. Cheyne contra Chrystie P. 19. Cheislie contra Edgar P. 181. Clerk contra Stewart P. 139 Colarnic Lady contra Tennents P. 112. Collector of the Taxations contra the Parson of Auldhamstocks P. 49. Colvil contra Feuars of Culross P. 28. Commissars
Sr. John Nisbet of Dirleton Lord Advocat One of the Senators of the Colledge of Iustice And one of his Maties most honble Privy Council etc. DISCâ—â—E IUSTITIAM D. Paton delin R. White sculp SOME Doubts Questions IN THE LAW Especially of SCOTLAND AS ALSO SOME DECISIONS OF THE LORDS OF COUNCIL and SESSION COLLECTED OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the Principal Matters in the said Decisions EDINBVRGH Printed by GEORGE MOSMAN and are to be sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII ADVERTISEMENT TO THE READER THE Deceast Sir JOHN NISBET of Dirleton His Abilities in the LAWS and generally in all Learning procured him the Employment of Kings Advocate And one of the Lords of Session and other Honourable Places deservedly conferred upon him in the time of His late Majesty King CHARLES the Second His long Practice and profound Knowledge in Our Laws gave the Rise to the following Doubts and Questions Which if he had Lived he would have Answered and Cleared as he has done many of them to the great satisfaction of our Ablest Lawyers and great improvement of our Law The Decisions are What his Leisure from publick Office could allow him to Observe and were ever thought so Succinct and Judicious that most Lawyers were at Pains to cause Copy them from the common Manuscripts though neither full nor Correct which now in the Printing is carefully helped At Edinburgh the fifteenth day of July 1697. Years THE Lords of His Majesties Privy Council Do hereby Grant to George Mosman Stationer Burges of Edinburgh his Heirs or Assigneys The sole Priviledge of Printing and Selling a Book Entituled Some Doubts and Questions of the Law Especially of Scotland As also The Decisions of the Lords of Session Observed by Sir John Nisbet of Dirleton Advocate to His Majesty King CHARLES the Second Together with An Index to the saids Decisions And discharges all other Persons whatsomever to Re-print Vend Sell or Import any of the saids Books for the space of nineteen Years after the day and date hereof under the Pain and Penalty of the Confiscation of the said Books to the said George Mosman for his own use and behoof and of the Sum of an hundred Pounds Scots to be payed by the Re-printers Sellers or Importers of the said Book to the said George Mosman Extracted by Me GILB ELIOT Cls. Sti. Cons LIST OF THE Several Heads of the following Doubts and Questions A. ADjudications page 1 Advocation by the Justices 2. Alimenta 3. Altarage Ib. Annexation to a Barony in another Shire Ib. Annualrent Ib. Annualrent for Damnage 4 Right of Annualrent Ib. Relicts Annuity 5. Annus Vtilis Ib. Appellatio Ib. Appellatio a Camera Imperiali Ib. De Appellatione a Praefecto Praetorio aliorum Judicum sententiis 6. Appellatio a Vicario Ib. Approbatio Ib. Arrestment 7. Arrestment of Conditional Debts 8. Arrestment Loused Ib. Per Aversionem Ib. B. Back-bonds to the Exchequer Ib. Bairns Part. 9. Bond Heritable Ib. Bond Moveable 10. Bonds of Provision to Children Ib. Bond of Relief Ib. Baron Courts 11. Bastard Ib. Bishops 12. Bishops Debts Ib. Bodomaria page Burghs Liferent Escheat Ib. C. Camera Imperialis Ib. Captions Ib. Casualities of Superiority 13. Causa cum qua Res transit Ib. Cautioner and Relief Ib. Chaplainrie Ib. Charge to enter Heir 14. Chattels Real Ib. Children and Creditors Ib. Childrens provisions Ib. Civitas Ib. Clauses in Contracts of Marriage 15. Coals 16. Collation Ib. Commission not to Expire morte Mandatoris 17. Commissioners to the Parliament Ib. Commontes Ib. Common Appendant 18. Communio Ib. Compensation Ib. Composition for Entry 19. Compriser Ib. Comprising Ib. Infeftments upon Comprysing 23. Conditio Ib. Confession by Criminals 24. Confirmation Ib. Confiscation 26. Confusione tollitur obligatio Ib. Conjunct-Fiar 27. Conquest 27. Consensus 28. Consensus Domini Ib. Consent Ib. Anent Consistories Whereby the Usefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are cleared 29. Consolidation 35. Decreets contra Consortes 36. Corporations 37. Creditors of the Defunct Ib. Persons convict of Capital Crimes Ib. Curator Ib. Curatores ad Lites Ib. D. Damnum cum quis utitur Jure suo 38. Death-Bed Ib. Debitor and Creditor 39. Nomina Debitorum Ib. Strangers Debts Ib. Debitum Annuum 40. Debitum in Diem Ib. Decimae Ib. Decreets of the Lords of Session Ib. Deeds both inter Vivos Mortis Causa Ib. Dependence 41. Destination of Succession Ib. Desuetudo Ib. Dies coeptus Ib. Dilapidation Ib. Dishablitation 42. Power to Dispone notwithstanding the giving away the Right of Fee Ib. Dispositio collata in arbitrium alterius Ib. Disposition 43. Actio ad Distractum 43. Division of the Duties of Lands betwixt Buyer and Seller Ib. Donatio inter Virum Vxorem Ib. Donatio mortis Causa 44. Donatio non acceptata Ib. Donators upon Recognition and Forefaulture 45. Duels and Hame-sucken Ib. E. Emancipatio Ib. Contractus Emptionis a Pretio incipiens aut Mensura Ib. What way the Buyer may be urged to Enter Ib. Entry of Assigneys upon Resignation 46. Entry upon Resignation by a singular successor Ib. Liferent Escheat Ib. Escheat single 48. Escheat without Backbond Ib. Delivered Evidents 49. Exception against the Cedent if always competent against the Assigney Ib. Executor Ib. Executor Creditor 52. Executor Nominate Ib. Executory Ib. Extent 54 Extinguishment of Rights Ib. F. Faculty to alter Ib. Faculty to Dispone Ib. Jus Facultatis Ib. Personal Faculty 55. Quae Facultatis sint Ib. Quomodo intelligendum Facultati non praescribi Ib. Faculty reserved to dispone Ib. Fee 56. De Feodo Pecuniae Nominum 57. Feus 67. F uda Nobilia Ib. Fiar Ib. Fiars of Bonds 68. Fiars in TailÈies 69. Fictio Juris 70. Fiscus Ib. Commissa Fisco Ib. Flumina Ib. Flumina Publica Ib. Forfaulture 71 Forisfamiliation 77 Funeral Charges Ib G. Gestio Haeredis 78. Gift Ib. Gift of Escheat with Backbond 79. Gifts of Forefaulture Ib. Gifts of Recognition Ib. Gift of Ward 80. If Gifts of Ward and Non-entry prejudge singular Successors Ib. Goods belonging to the Rebels at the Horn. Ib. Grana crescentia Ib. Great Seal 81. H. Heirs Ib. Behaving as Heirs 82. Heir of Conquest Ib. Discussion of Heirs 83. Heir and Executor Ib. Heirs Male 84. Obligements in Contracts in favours of the Heirs of the Marriage 85. Heirs Portioners 87. Heirs of Provision and substitute Ib. Heirs of TailÈie Ib. Quo casu Heirs of TailÈie may be considered as Creditors 88. Haereditas 89. Aditio haereditatis Ib. Haeres Contrahens Ib. Repudiatio Haereditatis Ib. Servus Haeres Ib. Vltimus Haeres Ib. Heirship Moveable 90. Money consigned for Redemption whether Heritable or Moveable Ib. Sums Heritable or Moveable Ib. Homologation Ib. Horning 91. How far a Husband is lyable for his Wifes Debt Ib. De Hypothecis Vulgo Wadsetts 92. Tacite Hypotheck 94. I.
his Intromission and disposing of the same A Compryser after expiring of his Comprysing of his Debitors Estate exceeding the value of his Debt Intrometting with or disposing of a part of the same Quaeritur If he may Compryse any other Estate belonging to the Debitor Upon pretence that he is not satisfied Or if the Expiring of the Comprysing and the making use thereof thereafter putteth him in the same condition as if the Lands had been Disponed to him irredeemably and datae and accepted in solutionem So that both Principal and Cautioner against whom a Comprysing is yet running may pretend that the Debt is satisfied At the least that the Creditor should denude himself of that Comprysing cum omni causa Lamertoun contra Mr. John Fairholme A Compryser of Lands holden Ward being Infeft Quaeritur If these Lands will ward by the Decease of the Compryser And if the Marriage of the Appearand Heir will fall Ratio Dubitandi A Compryser is but an interim Vassal for security of his Debt And upon that Consideration such a Right in England is considered as a Chattel If the Comprysing be redeemed will the Debitor be Lyable to refound the Damnage sustained by the Ward and Marriage Quaeritur If the Ward of the Comprysers Heir will determine and expire upon the Redemption Quid Juris in that case of proper Wadsets if the Debitor after Redemption will be Lyable to Refound the foresaid Damnage The difference being that a Comprysing is an involuntar Right and the Wadset Voluntar so that the Creditor seemeth to take his hazard If Lands be Comprysed from a Person who has no Right thereto for the time but acquires thereafter a Right whether the said jus superveniens will accresce If there be a difference betwixt a Compryser and a Buyer from an interposed Person who has acquired a fraudulent Right Viz. That a Buyer acquires a Right for an Onerous Cause and it is just and the Interest of Commerce that he should not be prejudged whereas a Compryser does only Diligence upon his own hazard and the Right Transit cum sua causa labe A Right being acquired bonâ fide from a Person not Inhibited after Comprysing and being Infeft before the Compryser Quaeritur Whether he or the Compryser will be preferable Answer The Lords found in the case of Sir Patrick Nisbet and Hamilton That the Compryser should be preferred Which appears to be hard seing a Comprysing is only jus ad rem and a Legal Disposition And the first compleat Right by Infeftment seems to be preferable and a Comprysing does not import vitium Litigiosi seing the Debitors Right is without Question And the Question is whether the Compryser or the Receiver of the Disposition should have Right to that which is unquestionable in it self The Debitor or these who have Right to the Legal Redeeming from the Appearand Heir of the Compryser whether doth the Redemption sist the course of the Ward and Marriage if the Heir be not Fourteen Years of Age Answer Affirmative quia resoluto jure principali resolvuntur consequentia Will not the Debitor be lyable not only to pay the Debt but to refound the prejudice the Creditors Heir sustains upon occasion of the falling of the Casuality of Ward and Marriage by the Decease of the Debitor Answer Affirmative and the Creditor and his Heirs should be Indemnes It being the Debitors fault that they are forced to Compryse and that the Comprysing is not Redeemed Whether a Discharge does extinguish a Comprysing the Creditor granting to be satisfied In the same manner that Intromission within the Years of the Legal doth extinguish the same Answer If there be no Infeftment a Discharge is sufficient But if there be Infeftment there must be at least a Renounciation Registrate in the Register of Reversions A Comprysing being Redeemed whether doth the Debitors Right and Infeftment revive or must there be a new Seasin and what way shall the Debitor be Reseased Answer There must be a new Seasin and the same way is to be taken as in the case of a Regress Seing the Compryser as he has a Legal Reversion so there is a Legal Regress Quaeritur If a Comprysing as to all effects be equivalent to a Resignation Ratio Dubitandi That a Comprysing is not only a Legal Disposition but the Compryser may be immediatly Infeft upon the same as upon a Resignation though the Debitor decease If a Compryser get a Right to the Legal of his own Comprysing before it expire by another Apprysing And so Deinceps if there be more Comprysings whereof the first Appryser obtains Right within the Respective Legals Quaeritur when the same doe expire Cogitandum If a Royal Burgh or others having Power to receive Vassals upon Resignation has Power likewise to receive upon Comprysings And if in that case any Composition be due to them If the Lands be Comprysed how shall the Duties be divided Answer If any part of the Lands be sowen before the Comprysing the Encrease will belong to the Compryser And if the Lands be set the time of the Comprysing is to be considered For if the Comprysing be before Whitesunday the Compryser will have Right to the whole Duties And if it be before Martinmass he will have Right to the half And if after Martinmass to no part thereof The Superior being charged with Horning to receive a Compryser and being Denounced will he be Lyable for Damnage and Interest if either he Infeft a second Compryser or a Precept be direct out of the Chancery for Infefting him If upon the Redemption of a Comprysing the Superiors will be obliged to Infeft the Redeemer Gratis Quid Juris If the Redeemer be another Creditor Quaeritur If Comprysings be equivalent to Dispositions and Resignation following upon the same so that the first Compryser is preferable to others even before Infeftment Answer That Comprysings are only Legal Dispositions and do not denude the Debitor without Infeftment whereas Resignation being made in the Superiours hands and accepted doth denude What is the reason then that after Comprysing it is found that the Debitor not inhibited cannot Dispone in prejudice of the Compryser Answer That the Law and the Judge who is Lex animata having in subsidium Disponed to the Creditor the Debitors Lands the same is so affected by the Legal Diligence that the Debitor is denuded as to that effect that he can do no voluntar deed to prejudge the Creditor Without prejudice nevertheless of more exact and compleat Diligence of other Creditors who obtaining Infeftment will be preferred to the first Compryser as in the case of Moveables after Arrestment the Debitor cannot dispone the same and yet may be Evicted by another Creditor by way of Poinding If a Superiour be content to take a Right to a Comprysing of Lands holden of him not being willing to enter the Compryser Quaeritur If he may claim a Years Duty when the Lands are Redeemed Answer Negative And he is in
Executa if there be another nearer to the first Defunct To consider the Civil Law as to Haeres cum beneficio Inventarij If an Executor be not Haeres in mobilibus cum beneficio Inventarij Executor Creditor A Creditor being confirmed Executor and dying before the Testament be Executed Will not his nearest of Kin be confirmed ad non Executa and exclude all other Creditors in respect of the Diligence of his Predecessor and that Confirmation did affect the Goods for their satisfaction Three Creditors being confirmed for their Respective Debts and one of them deceasing before Sentence Quaeritur Will the Office and benefite belong to the Survivers entirely Ratio Dubitandi A Testament Creditor is a Diligence and there is no other way of Diligence to affect the Moveable Estate of a person deceased and it is equivalent to diligence against Debitors on Life affecting their Moveables And on the other part Executory being an Office the Law preferreth the Creditor If the nearest of Kin do not own it But cum sua causa and so that the nature of the thing is not altered And therefore the Executor dying the Office and Diligence doth evanish Quid juris in the case of an Executor Creditor If after he is satisfied the nearest of Kin will have an Action for the superplus If a Testament be Execute by a Sentence against the Debitors though payment be not made Vide Hope Executor Nominate IF an Executor Nominate be Lyable as a Tutor not only for what is confirmed but what he might have confirmed and intrometted with Tweeddale contra D. of Monmouth Executory WHether Vniversitas bonorum That is an illiquid Right Though the Subject may consist of Moveables as a single Escheat Conquest Society as to a Trade or Shipping Will fall under Executry If Casualities of Ward Liferent Escheat Non-entry Marriage will fall under the same Or to the Superiors Heir There being a Bargain of Lands in nudis finibus contractûs vel Dispositionis will the Price belong to the Heir who must perfect the Bargain Answer It is thought not Seing the Price is a Moveable Sum And it appears that the Defunct having sold the Lands had use for it and did intend to uplift it Whether a Gift of single Escheat will fall under Executry or belong to the Heir Ratio Dubitandi That the Escheat is jus Vniversitatis And nothing is in use to be confirmed but either particular Moveables or Debts and plenishing estimate in cumulo Item Whether a Gift of Liferent Escheat which as to the Donator is a Moveable Interest will fall under Executry Ratio Dubitandi As in the former And likewise that during the Liferenters Lifetime it cannot be construed what it will amount to And it has Tractum futuri temporis The same Question may be as to a Tack Assigned Whether the Heir who has Right to a going Coal will have Right to Buckets Chains and other Instruments as being accessoria and destination addicted to the Coal as the Colliers Or if they will fall under Executry A Person being about the building of an House And the samen being begun and certain Materials as Stone Lime Slats and others being prepared o that use Whether will they belong to the Heir for the reason foresaid or fall under Executry A Daughter having accepted her Tocher and Provision by Contract of Marriage in satisfaction of what might fall to her either by her Father or Mothers Decease The Contract of Marriage being after her Mothers Decease Quaeritur If another Sister will have the Mothers part entire without respect to her Sisters Interest being renounced as said is Ratio Dubitandi That the Father who is Lyable for his Wifes Third is in Effect Discharged as to his other Daughters part of the samen And on the other part the Mothers part belonging to her Children non jure Legitima as Bairns but as Executors and representing her If any of them Decease before Confirmation or be unwilling to confirm their Renounciation will be ineffectual as by a person not having Right Quaeritur If the the Sister who is not Excluded should confirm If the Sister who is Excluded as said is may at least have Action against her for her part of the Mothers part To the effect that the Discharge in favours of her Father may be effectual It is Answered That unless she be confirmed her self she can have no part of that which belonged to her Mother And albeit by the Act of Parliament anent Executors Nominate the nearest of Kin has Action for the superplus of the Deads part exceeding the third That is only in the case therein mentioned the said Act giving Condictionem ex lege in that case only Whereas that Act doth not militate in other cases where there is no legitime but only an Interest to represent which cannot be effectual sine Aditione Confirmation being in effect Aditio in mobilibus Quaeritur If a moveable Escheat will belong to the Executor seing Moveables belong to the Executor and moveable Sums and other moveables fall under the same Answer It is thought that Escheat being Jus Vniversitatis should belong to the Heir Seing not only mobilia do fall under the same but also such Rights and Interests as cannot belong to an Executor as Tacks if they be not Liferent Tacks And it is the stile of Gifts that the Escheat should be holden of his Majesty which does not quadrate and is not proper to be said of such things as belong to the Executor Extent IF the Inquest be warranded to Extend unless there were former Retours upon a Commission to Extend Extinguishment of Rights IF the Heretor of Praedium Dominans acquire the Right of Praedium serviens Whether doth the Right of Servitude extinguish quia res sua nemini servit So that if he sell the Dominans the Servitude doth not revive If the Heretor of Land acquire a Right of Annualrent out of the same Whether or not is the said Right of Annualrent extinguished or suspended only So that it may revive if the Right of Property be taken away by Reduction F. Faculty to alter LAnds being disponed with power to alter without these Words Etiam in Lecto If that Faculty may be used in Lecto A Person having reserved a Power to alter in Lecto May he then use that Power in favours of any other Person than his Heir seing he is not in legitima Potestate as to the disponing an Heretable Interest and on the other Part the Heir has no prejudice Faculty to Dispone BY a Write granted by the Earl of Callender to his Lady he gives her power to dispose of the half of his Estate Quaeritur The said Power being Personal without mention of her Heirs and she not having used the said Faculty If the said Power be Transmissible Found by the Lords That the Earl of Dumfermling as Heir to his Mother had right thereto and he having assigned the same to his Son he recovered
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
Scotland it may be affected If a Prince may command a Subject living Abroad under his Enemy to retire and come home And if he disobey may he be proceeded against and be divested of any Fortune and Liberty competent to him as a Native Quoties Rex Princeps vel alius in alterius Regis vel Principis Territorio bona habet possidet ratione quorum Juramentum fidelitatis praestare solitus est per hoc non efficitur ratione suae personae seu personali obligatione subditus aut subjectus nec quoad personam sortitur forum nisi secundum quid ita ut pro tali possessione bonorum conveniri possit coram Judice loci in cujus Territorio bona sunt Thes Bes in litera H. 70. Huldigung p. 402. Substitutes A Bond for a Sum of Money being granted to Sempronius and FailÈieing of him by decease to Titius and Titius his Heirs and Assigneys Quaeritur who is Fiar Answer The first person Titius being only substitute FailÈieing of him by decease and Successor in spe Quaeritur If Sempronius may dispose of the said Sum by Testament as he may inter vivos Ratio Dubitandi That Titius is substitute by a deed inter vivos Answer It is thought he may Seing such Deeds are upon the matter Donationes mortis causa in which voluntas est ambulatoria Quaeritur If the said Substitute will be lyable as Heir of TailÈie It is thought he should be lyable Seing if there were an Infeftment in the terms foresaid the Substitute could not succeed but as Heir of Provision If a Bond bearing the Substitution foresaid be registrate Quaeritur If the Substitute being named as said is may charge thereupon Answer It is thought not because the Bond being registrate is a Decreet as to the first Person but the Substitute having only right instar haeredis by Succession he cannot charge no more than an Heir of Provision Substitutio SVbstitutio est Designatio secundi vel ulterioris haeredis Substitutio vulgaris est ea quae fit in casu vulgari haereditatis non aditae nec acquisitae Perez Institut lib. 2. tit 15. Substitutio Pupillaris est qua Parentes Liberis suis in potestate sua impuberibus substituunt in casu mortis ante Pupillarem aetatem acquisitae haereditatis Constitutione Divi Marci Veri substituens in alterutrum casum duntaxat vel Vulgaris vel Pupillaris substitutionis in utrumque substituisse intelligitur alterum sciêª expresse alterum tacite Perez Ibidem Quaeritur De substitutionibus in Taliis nostris istis verbis viz. Cum Terrae disponuntur Titio haeredibus suis de corpore suo prognatis quibus deficientibus haeredibus masculis c. utrum sunt pupillares an vulgares Responsio Eas utramque Substitutionem continere Deficientibus enim Haeredibus institutis in primo gradu quolibet casu sive non adierint sive haereditatem adierint defecerint ad substitutos haereditas pertinet Substitution in Bonds A Bond being granted to the Creditor and failÈiening of him by decease to another person Quaeritur If the Person substitute will be lyable to the Creditors Debt at the least pro tanto Seing the Sum was in bonis and his Debt ought to be satisfied out of his Estate If such Bonds may be altered by the Creditor not by uplifting which he may do being Fiar but also by changing the Bonds and taking the same to himself and any other person or to his Heir Seing the Bonds seem to be a perfect Donation in favours of the Substitute and on the other part they may be thought mortis causa If the Creditor may dispose of such Sums by Testament A Bond being granted by diverse Persons to my Lord Dundonald and failÈiening of him by Decease to his Son the Lord Cochran his Heirs and Executors and after the decease of Sir John Nicolson one of the Debitors he having taken a Bond of Corroboration from his Brother Sir William to himself and failÈiening of him by decease to his Grand-child then Lord Cochran his Father being deceased Quaeritur Seing the first Bond stands as to the rest of the Debitors Whether the Lord Cochran his Fathers Executors will have Right to the same And what course shall be taken to get the Right of the former Bond settled in Cochran's Person Quaeritur If the former Bond being null and in the Bond of Corroboration there be an Obligement to Infeft if the nature of the Sum as to the former Quality of Moveable be altered A Bond being granted to Robert Selkirk Merchant in Edinburgh and Katherine Inglis his Spouse the longest liver of them two in Conjunctfie and failÈiening of them both by decease to Robert Selkirk their lawful Son and to the Bairns lawfully to be procreat of his Body which failÈiening to the other Heirs lawfully procreate or to be procreate betwixt the said Robert and his said Spouse Which all failÈiening to the said Katherine Inglis her own nearest and lawful Heirs Executors or Assigneys with this Provision That it shall be leisum and lawful to the said Robert Selkirk Elder at any time dureing his lifetime vel in articulo mortis by himself alone to uplift discharge or otherways assign and dispone the Sums in the said Bond in haill or in part to any Person or Persons he shall think expedient and to make and grant all Writes Rights and Securities requisite thereanent in due and competent Form without the Consents and Subscriptions of the said Katherine Inglis his Spouse and Robert Selkirk his Son or his foresaids had or obtained thereto in any sort The abovementioned Robert Selkirk the Husband and Robert Selkirk his Son being both deceased without Heirs either of the Body of the said Robert Selkirk Younger or of the Marriage betwixt the said Robert Elder and the said Katherine Inglis so that the said Katharine has Right to the said Bond Quaeritur Whether the same will pertain to her in her own Right as Fiar or as substitute in the last place and representing the Fiar And who is Fiar by the said Bond Whether the said Robert Elder his Son or the said Katharine who pretends to be Fiar because the Right of Succession terminats upon her and her Heirs It is Answered That albeit when a Bond is conceived simply to two Persons in Conjunctifie and the Heirs of one of them the Person to whose Heirs the Sum is provided is understood to be Fiar yet when there are diverse degrees of substitution of the Heirs of diverse Persons the Person whose Heirs are first substitute is Fiar and both his own Heirs substitute in the first place and the other Heirs of any other Person substitute after them will be Heirs of Provision to him As when a Bond is taken to a Husband and his Wife the longest liver of them in Conjunctfie and to the Husbands Heirs whilk failÈiening to the Wife her self and her Heirs tho the Right of Succession as to the
Father the younger Brother will be Heir to them though not to their Father Tutor and administrator of Law QVaeritur If Debitors may pay the Father as Tutor of Law sine inquisitione and without some authority of the Judge competent Seing there may be prejudice to the Pupil if the Father be prodigus or otherwise unfit Tutor Ratione Rei QVaeritur Whether a Person Disponing his Estate to a Pupil or Minor may appoint Tutors and Curators for administration of it during Minority Answer he may appoint Tutors or Curators to administrate But the Question remaineth whether he may appoint a Tutor not only rei suae but Personae and to any other Estate belonging to the Pupil Quaeritur The Father being deceased may the Grand-Father name Tutors to his Grand-Children There being no place to a Dative till after year and day Quaeritur If the nearest Agnat may oppose the giving a Dative Or if Jus be fully devolutum to the King as in other cases Juris devoluti Tutory FIve Persons being named Tutors whereof two to be sine quibus non viz. The Defuncts Relict and another and the Relict being Married and the other sine quo non deceasing Quaeritur Whether the Tutory falleth And if it be void whether the nearest of kin of age may be Tutor in Law Or if there should be place to a Tutor Dative And if in that case the surviving Tutors should be preferred to all others Ratio Dubitandi 1mo Though the defunct did express his respect to the sine quibus non so that during their being Tutors they should be sine quibus non he did also express his confidence in the other Tutors above all others by nameing them Tutors so that for the reason soresaid it may appear That they should continue Tutors at the least that for avoiding of question they should be preferred to be Datives 2do The next nearest of Kin should not be Tutors seing the Defunct did not trust them The case of my Lord Montrose his Father having named his Mother and the Earles of Perth and Haddington Drumelzior and Sir Willaim Bruce to be his Tutors V. Re-entering of Vassals WHen a Right holden of the Superior is reduced whether the Superior be obliged to Re-enter without a Composition Vectigalia Pedagia VEctigalia Pedagia sunt quasi stipendia Principum pro protectione reparatione itinerum pontium instituta Jus Fluviat Tom. 2. Consil 8. p. 140. n. 23. Licet per vadum quis transire possit solvitur tamen pedagium de fluminibus c. 24. Vinco Vincentem QVaeritur In what case the Brocard holdeth Si vinco vincentem vinco te Answer ubi est eadem Ratio as v.g. If there be three comprysings and the last compryser be first infeft and thereafter the first and the second in the last place But there is an Inhibition at the instance of the second before the Debt of the third Compryser The second will be preferable to the third who will be preferable to the first and yet the first will be preferred to the second As in the case of Adjudication and Infeftment thereupon the adjudger may exclude the Superiors Ward falling by the Debitor Quaeritur If he may exclude and be preferable to the Liferent having the first Infeftment Quia si vinco vincentem vinco te Answer he is not preferable to the Liferent and the Brocard doth only militate ubi est eadem Ratio vincendi and the adjudger vincit the Superior because he is infeft holden of him so that there can be no Ward but cannot upon that ground vincere the Liferenter because she is also infeft and has a prior Infeftment though base yet publick and which therefore doth exclude the adjudgers Infeftment being posterior though it would not exclude the Superior as to his casuality because base and not confirmed by him Ballencrief vide Debitor and Creditor Quaest 3. Litera D. U. Union THere being an Union in a Charter of Lands in diverse Shires so that one Seasin may be taken for all Quaeritur If the Heir may be served in the Shire where Seasin is to be taken as to all the Lands In respect the Lands in other Shires are fictione juris and by reason of the Union thought to be there Or if there must be a Service by a Commission or two Services in the several Shires If notwithstanding of the Union Seasin may be taken of both the Lands seing the Charter bears that una sasina erit sufficiens and not that it shall be necessary And if the Seasin may be quarrelled as not being at the places where Seasin is to be taken Item if the Taking two Seasins upon the Retour will import a renunceing of the Union so that a seasin cannot be taken thereafter at the place of the Union upon Resignation or otherwise Vniversalia augmentum recipiunt TOtum est vel Vniversale vel Integrale Vniversale ut haereditas Dos c. augmentum Diminutionem recipit futurum includit Ita grege legato quae postea accedunt ad Legatarium pertinent Jus Fluviat p. 768 n. 12. sequent Quando Vniversitas delinquit UNiversitas dicitur delinquere quando secundum consuetudinem loci per praeconem vel sonum campanae fuerit convocata in Concilio generali sponte convenerit deliquerit Si Decuriones consenserint tantum non Vniversitas sed particulares deliquisse dicuntur quia aliud est Vniversitas aliud singuli in generali potestate Decurionibus data non includitur potest as delinquendi Fritschii Tom. 2. exercit 3. Juris publ n. 73. Licet ista solennitas contra civitatem sit probanda tamen haud requiritur in delictis tractum successivum habentibus v. g. si non punitd elinquentes quia ibi praesumitur ratificatio quae in paenalibus mandato quoque comparatur consensus ipsius satis facto declaratur ibid. n. 75. Quomodo puniatur Vniversitas vide ibid. n. 78. sequent Punitur aliquando Banno sumpto de authoribus supplicio ut paena ad paucos metus ad omnes perveniat ibid. n. 80. W. Wadsets Vide De Hypothecis WHAT way shall a Creditor be secured as to a Wadset or Money due thereupon Answer He may compryse the Wadset-Right and if he cannot compryse the term of payment of the Creditors Debt not being come he may arrest the Sum due upon the Wadset to be forthcoming in case of redemption vide Arrestment of Conditional Debt in litera A. If Another Creditor compryse the Wadset will he be preferred to the Arrester befor the Order though anterior Answer he will be preferred being in the Right the time of the Redemption And the Money being only due to these who have Right to the Land and must renounce and retrovendere The Wadsetter deceasing after an Order and the Money being consigned Quaeritur Whether will it belong to his Heir or Executor Ratio Dubitandi Money of it self is Moveable And
Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Disposition upon the Certification seing the Write was produced and not suspected nor questioned to be false and the Defender did excuse and purge her negligence as said is and the Disposition being in her favours who was sub potestate Mariti and should be defended by him having her self in Law neither velle nor nolle his negligence should not undo her And therefore the Lords having considered also the Difficulties in the Debate upon the Reason they reduced the Disposition in manner aftermentioned by reserving to the Defender to pursue for the said pretended Debts and declared that if she recovered Decreet the Pursuer always being called that there be no collusion the Defender shall come in pari passu with the Pursuer and that the Disposition shall stand to that effect only Both the Parties acquiesced to the Decision D. 81. Cheap contra Philp. eod die MR. Cheap pursued a Reduction of a Disposition made by _____ Philp in favours of Mr. John Philp upon these Reasons That it was subscribed by two Notars and their Subscriptions did not bear de Mandato and because one of the Notars was known to be of so great Age that he had not been for a long time employed as a Notar and that he had only subscribed his Name The rest of the Solemn Words used by Notars when they subscribe in subsidium being writen by the other Notar Therefore another Notar had been also used besides the two Notars And that no respect ought to be given to his Subscription by reason it was ex Intervallo and not uno contextu 2. That the Disposition was in lecto The Lords When the case was reported debated upon the first Reason and in special upon these Points 1. Whether in Subscriptions in subsidium by Notars it be essential it should be exprest That they subscribed ex mandato and if that solemnity may be supplied by offering to prove that the Notars were Rogati It was urged that Minuts and Abbreviations of Seasins might be extended and transumed though none of the ordinary Solemnities be exprest and therefore such Defects and Omissions may be supplyed It was Answered That in Abbreviations Omnia praesumuntur solenniter acta But when an Instrument is compleat or any other Write if it want the Ordinary Solemnities they cannot be supplyed solennitas non praesumitur And being only probable by the Write it self it cannot be made up by Witnesses 2. It was debated Whether a Father or Grand-father could be Notar in a Write or Right in favors of the Son or Grand-child The Lords did demurr upon these Points and thought fit that before Answer as to these the Reason founded on Lecto should be discussed D. 82. Watt contra Halyburton eod die JAmes Halyburton being infeft upon a Comprysing in some Acres in Dirleton did grant a Disposition of the same to Adam Watt whereby he was obliged to infeft him by two Infeftments whereupon the said Adam Watt his Son having Right by Assignation from his Father pursued William Halyburton as Heir to the Disponer for implement and obtaining himself infeft and thereafter to infeft the Pursuer It was Answered That the Disposition was in the hands of Adam Watt by the space of twenty years and that he had made no use thereof and that the Defenders Father had done all that he could for denuding himself of the said Right the said Disposition bearing a procuratory of Resignation and that the Lands holding Ward if the Defender should enter his Ward and Marriage would fall so that unless the Pursuer would warrand him as to that hazard he cannot be obliged to infeft himself The Lords decerned reserving Action to the Defender for Damnage and Interest as accords D. 83. Key contra Fleming 15. June 1667. GEorge Fleming having an Infeftment of Annualrent out of the Lands of Cambo and thereafter having comprysed for his Principal Sum It was Found in a double Poinding and Competition betwixt the said George and Gilbert Key another Creditor of Cambo that the said Gilbert should be preferred in respect of the said Gilbert his Infeftment in an Annualrent That Decreet being suspended Fleming craved to be preferred in respect his Right of Annualrent was before Key 's Right It was Answered That this Infeftment was extinct and taken away by the Comprysing and that he could not now have recourse to it after a Decreet of Preference in foro contradictorio It was Replyed That Decreets of double poinding preclude as to bygones but as to the future all are qualified for any thing that was then seen The Lords were clear that notwithstanding of the Comprysing he might have recourse to his former Right But the great Question was Whether Decreets of Poinding the Ground against a Party compearing did include him so that he could not be heard against Competent and Omitted which the Lords did not decide but recommended to the Reporter to settle the Parties Gibson Clerk D. 84. Home contra the Countess of Murray 18. June 1667. JAmes Home of Beaprie having Assigned to the Countess of Murray the Gift of Escheat of Sir John Kininmouth and certain Debts due by the said Sir John The Lady by her Bond granted that she had got the said Right and obliged her self either to make payment to the said James of the foresaid Sums or to Repone him to his own place The Lady being pursued upon the said Bond alledged that it was null being granted by her during her Marriage without her Husbands consent It was Answered that the desire of the Summonds was alternative either to pay or Repone the Pursuer Et deceptis non decipientibus succuritur The Lords having debated amongst themselves upon the reason of the Law annulling Deeds stante Matrimonio done by Wives and some argued that Women Married are not in the condition of Pupils who have not judicium nor Minors who have not Judicium firmum and that they are Lyable Ex delicto vel quasi and ex dolo The Lords before Answer to the Debate whether her Assertion in the Bond viz. That she had received the Writs mentioned in the same should be Obligatory at least so far as to Repone the Pursuer They Ordained her to be Examined anent the cause of granting the Bond. Gibson Clerk D. 85. Johnstoun contra Cuninghame 19. June 1667. A Bond being granted to a Husband and his Wife and the Heirs of the Marriage which failÈiening their Heirs was Found to pertain to the Husband after the Death of the Wife in solidum And that these words their Heirs ought to be understood Civiliter of the Heirs of the Husband as being persona dignior D. 86. Watson of Dunnykier contra his Vassals 21. June 1667 THE said Watson having Feued certain Crofts with a servitude in his Muir of Path-head to Winn Divots and Clay for Building and Repairing the Houses Built and to be Built by the Vassals pursued Declarator that it should be lawful to him to improve the Muir
Renunciations is to be understood of Voluntar Renunciations which the Party inhibite is not obliged to grant As v. g. An Heretor having a Base Right irredeemable should after Inhibition renounce the same 6. If a Wadset had been granted before the Inhibition the Creditor may renounce because in Law and by the Contract he is obliged upon payment to renounce so that it is not a voluntar Deed And there is eadem Ratio in Wadsets after Inhibition seing the Right is granted with that condition that upon payment the Creditor should renounce And as I may grant a Right to a Person inhibited so I may grant it with that Quality that he should be obliged to re-dispone in which case he may lawfully dispone back again notwithstanding of the Inhibition D. 97. Ker contra Ker. eod die THe Lords Found That an Executor notwithstanding of the Oath given upon the Inventar the time of the Confirmation may be urged to declare upon Oath whether since the Confirmation it is come to his Knowledge That some Goods and Debts were omitted which he did not know the time of the Confirmation and whether he has gotten greater Pryces than are contained in the Inventar Gibson Clerk D. 98. Sir James Keith contra Lundie eod die A Decreet being obtained against Sir James as charged to enter Heir of TailÈie to his Brother Alexander in foro for payment of a Debt due to Lundy Two Exceptions being proponed and admitted and the Term circumduced he craved to be reponed against the said Decreet Alledgeing that the Procurator who pretended to compear for him in the Decreet had no Warrand and was sick for the time The Lords inclined to repone him as to personal but not as to real Execution and desired the Reporter to deal with the Party to consent Hamilton Clerk D. 99. Hermiston contra L. Sinclair 17. July 1667. HErmiston being bound to pay to the Lord Sinclair his Brother out of the first and readiest of the Rents of the Estate of Sinclair a certain Annuity The Lords Found That he ought to pay the said Annuity entire tho he pretended he was not obliged simply but out of the Rents and that the said Rents in respect of the real burdens upon the Estate and the low Rates of Victual would not extend to satisfie the same Seing he was obliged to pay out of the first and readiest D. 100. Lady Burgie contra Strachan eod die A Base Infeftment given by a Husband to a Wife was sustained after the Husbands decease as publick and cled with Possession albeit the Husband was not in Possession the time of granting the Right In respect either he or others by redeemable Rights and Tacks given by him came in Possession thereafter D. 101. Fyffe contra Daw in Perth 6. Novemb. 1667. A Burgess in Perth having put his Son with a Neighbour to be his Prentice and the Boy having diverted from his Service the Father was pursued for Damnage and Interest sustained by the Master who did referr to the Fathers Oath his absence and diverting In which Process the Father having declared with a Quality That the Master had beaten and put away his Son The Lords Found The Quality being super facto alieno did resolve in an Exception which he should have proponed and cannot be proven by his own Oath And yet though the Process was a Suspension wherein there had been Litiscontestation as said is The Lords did give a Term to prove the said Quality Procurators Fyffe alter Chambers D. 102. Duke and Dutchess of Monmouth contra Scot of Clarkingtoun 12. Novemb. 1667. REquisition being made by the Duke of Monmouth and his Lady to Sir Laurence Scot of Clarkingtoun for a Sum of Money But the Notar having deceased before his Instrument of Requisition was extended and there being only a Minut of the same unsubscribed the said Duke and Dutchess pursued Clerkingtoun for extending and making up the Instrument and craved that Clerkingtoun and the Witnesses might be examined to that purpose and that upon Probation that the Requisition had been made conform to the said Minut an Instrument under the Clerk Registers hand should be equivalent to an Instrument The Lords Refused the said Desire in respect the said Minute was neither subscribed by the Notar nor in his protocal Lockheart alter Spotswood And that Requisition and such Actus Legitimi cannot be proven but by Instruments perfected as to all necessary Solemnities at least the Minutes of the same under the Notars hand And tho the Debitors or Party concerned may know such Deeds were done de facto they may be ignorant and are not obliged to declare whether they were Legally done or not D. 103. Allanus Henderson contra 14. Nov. 1667. QUia facti species quae sequitur dubia perplexa de ea disceptatio in apicibus Juris est eam argumenta ultro citroque adducta ex Jure Civili Juris istius Idiomate Latine visum est subjicere Sequitur species facti Ninianus Henderson nauta incola villae quae vulgo nuncupatur Salinae Praestonianae peregre profecturus nec immemor periculorum quibus nautae navigantes obnoxii sunt de rebus suis patrimonio quod exile satis erat in praediis urbanis quibusdam tenementis in villa ista sitis disponere statuit quod fecit Chirographo seu Instrumento sed adeo informi Styli ancipitis dubii ut acerrimae Disputationi ansam praebuerit utrum Testamenti Donationis mortis causa an inter vivos Jure censeri debeat Ejus Clausulas tenorem breviter perstringam Cum esset coelebs nec liberos nec fratres haberet sed sororem unicam eam praeteriit nulla de ea mentione facta praefatus de profectione sua de morte quod haud Ignarus esset ea nihil esse certius nec minus hora tempore quo esset obeunda nihil esse incertius Ideo amore gratia ductus quo prosequitur Allanum Henderson Nimani Patrui sui filium nominat ipsa verba constituit dictum Allanum haeredes Executores Assignatos suos ejus haeredes Successores Donatarios in rem suam irrevocabiliter In ad sua Tenementa domos et terras arabiles jacentes in villa dicta ad omnes alias terras haereditates bona quae in posterum ad sese pertinere contigerint cum plena potestate dicto Allano suisque praedictis si ipsum mori nec in patriam redire contigerit intrare confirmationem obtinere a Domino directo superiore in ad dictas terras Tenementa iisque frui possidere Transferendo in dictum Allanum ejusque praedictos omne jus suum tam proprietatis quam possessionis excludendo agnatos necessarios suos proximos cognatos quoscunque cum cessione omnium Instrumentorum Evidentiarum dicta Tenementa Terras concernentium Reservando tamen ipsissima verba quae notanda sibi
Provision as charged to Enter Heir respective It was alledeged for the Heir of the first marriage that he offered to renunce And for the Heir of Provision that the Heir of Line ought to be first discussed by adjudication and condescended upon movable Heirship which might be adjudged It was Answered for the Heir of Line that his Father having provided him had taken from him a Renunciation of all that could belong to him as Heir So that he could have no Right to the movable Heirship which in respect of his Renunciation would be considered as other movables and fall under Executrie It was Replyed for the Heir of provision that by the Renunciation the Heir of Line had renunced his kindness to the effect his Father might have power to dispose of the Heirship but his Father not having disposed thereof the Right returned to the Heir of Line again the Renounciation being in favours of him and his Heirs as in Renounciations of that nature as to Lands if the Father does not dispose of the same they will notwithstanding belong to the Heir Some of the Lords thought there should be a difference betwixt Lands and Movable Heirship In respect the Right of Lands whereof the Father died infeft cannot be Setled in the person of any other but the Heir who therefore ought to have Right notwithstanding of the Renunciation But the Movables which should fall under Heirship by the Renunciation of the Heir cease to be Heirship and may be confirmed as other Movables Others Thought that the Effect of such Renunciations should be the same as to Movables and Lands the Fathers intention being one and the same for both and therefore as the Right in the construction of the Law returneth to the Heir of the Father who doth not otherwise dispose of his Lands there is the same reason as to movable Heirships And as to the pretence foresaid it is of no weight seing if it were the Intention of the Father that by such Renunciations the Son should be denuded without Return though the Father should not dispose of his Lands the Son may be pursued and forced to denude himself that his Renunciation may be effectual in favours of the nearest of Kin. The Lords before answer ordained the Renunciation to be produced that they might consider the Tenor of it D. 108. Tacksmen of the Custumes contra Greenhead Eod. die THe Custums of the Borders being set in Subtack to Greenhead and others by the Tacksmen of the haill custumes of the Kingdom Greenhead is pursued as representing his Father one of the Subtacksmen for the dutie the year 1650. It was alledged That the Subtack was altogether unprofitable upon the occasion of the English Invasion so that Beasts and other Goods were not imported nor Exported that year as they had been in use formerly It was Answered that albeit in praediis Rusticis in case of Sterilitie Vastation and such other Calamities that cannot be avoided There may be abatement craved Remissio Canonis yet in this case the Subject being conductio rei periculosae Jactus Retis the Subtacksmen ought to have no abatement and are in the same case as Tacksmen of Salmond fishing who will be lyable for the duty albeit no profit arise to them The Lords Found That Subtacksmen should have abatement But the Question being most Quatenus and concerning the proportion because though the Subtacksmen had undoubtedly loss yet it was not Total there being some Commerce betwixt the Kingdoms for that year some Moneths It was Found in end upon hearing of Parties that the half of the Dutie should be abated Actores Lockhart Cuninghame Alteri Sinclair Mr Thomas Hay Clerk The Law is very clear ff Locati and the Doctors upon that Title not only in praediis but in conductione vectigalium and the like in case of an insuperable Calamity remittitur Canon merces but they are not so clear as to the Quatenus and proportion of the abatement when the detriment is not Total But it is just the abatement should be proportionable to the loss And accordingly The Lords decided D. 109. Justice Clerk contra Lambertoun 23. Nov. 1667. IN the case the Justice Clerk contra Lambertoun the probation anent the value and worth of the Woods pertaining to the Justice Clerk and cutt and intrometted with by Lambertoun being advised It was considered and represented by some of the Lords that had been Commissionated to examine the Witnesses adduced by both parties being allowed to have a joynt probation that the probation was dubious the Witnesses for the Pursuer declaring too highly and the Witnesses for the Defender too low as appeared And that the Subject of the Question not being de re which is the proper Object of Sense but de rei valore qui cadit sub Judicium Intellectum The Testimonies of the Witnesses are not de rei veritate but de credulitate opinione and therefore are not numeranda sed ponderanda according to the circumstances both of their oun quality and the quality of the Declaration whether they have declared verisimilia and whether animose and such like and whether they have given a probable reason of their knowledge That in this case the Witnesses that have deponed most to the advantage of the Pursuer are his own Tennants and one of them a Smith his Officer that they give the reason of their Knowledge that they dwelt in the bounds which is not sufficient unless they had been periti and Conversant about the matter of Woods and the Buying and the Selling and the valuing of the same That some Witnesses for the Defender had given their Judgment upon oath as strongly and pregnantly as they though they be not so many So that the probation at best is but dubious and in dubiis minimum sequendum at the least the Lords have a latitude to found their Judgment upon the Testimonies of both cum temperamento and without adhering percisely to either The Lords Found nevertheless by plurality That they should have respect to what had been proven by the most part And accordingly Decerned D. 110. Rankin contra Skelmorlie and Dunlop eod die IN a double poinding at the instance of the Lord Melvil there being a Competition betwixt two Creditors of Antonia Broun Daughter and Heir to Sir John Broun The Lords preferred Skelmorly the first Arrester Though Rankin had obtained a Decreet to make forthcoming and had compleated his Diligence and alledged that an Arrestment is but an inchoate Diligence and doth not hinder any other Creditor to compleat and do more exact diligence by poinding or by a Decreet to make forthcoming which in Debts and in nominibus are equivalent The reason of the Decision was that Skelmorly had not only Arrested but had intented a pursuite before the Lords to make forthcoming before Rankin But Processes before the Lords being more tedious and the Pursuer not Master of Calling Rankin had taken advantage by obtaining a Decreet
before the Sheriff in the interim D. 111. Hay contra Drummond 26. Novem. 1667. IN a Reduction Hay of Haystoun contra Drummond and Hepburn A Seasin being called for The Defenders having alledged that the same being Registrate and they condescending upon the Registration the pursuer should Extract it himself The Lords did debate amongst themselves whether the Defender should be obliged to Extract and produce the Seasin Some were of the opinion that there is a difference betwixt Decreets and Registrate Bonds and such like and betwixt Seasins and Charters which being the Defenders own Evidents and the principals not being in the Registers they are presumed to have them and if they have them not ought to Extract them Others thought that seing Extracts do satisfie the Production in Reductions If the Defenders have neither Principals nor Extracts and be content to make Faith thereupon it were hard they should be at the Charge to Extract them in order to a Process against themselves The Lords did nothing upon the Debate The Lords did resolve and caused intimate to the Advocates That hereafter they would only give two Terms in Reductions and three Terms in Improbations D. 112. DalÈiel contra eod die THE Minister of Prestonhaugh Mr. John DalÈiel pursued for the Teinds of Lanton upon his presentation to the said Kirk and Teinds Parsonage and Viccarage It was Alledged no process unless he were presented to be Prebendar seing the said Kirk is a Member of the Collegiate Kirk of Dumbar and cannot be made appear to be dissolved and Erected in a several Rectory The Lords Found That being presented to be Minister at the said Kirk and to the Teinds which are the patrimony of the Prebendar it is equivalent as if he were presented Prebendar As when there is a presentation to a Kirk which is a Parsonage and to the Teinds the Minister will have Right though he be not presented to be Rector or Parson D. 113. E. of Lauderdale contra Vassals of Musselburgh 5. Decem. 1667. IN a Reduction and Improbation at the instance of the Earl of Lauderdale against the Vassals of Musselburgh and in special Major Biggar and others Heretors and possessors of the Lands of Hill The Lords Found That the Major having produced a more eminent progress and which he alledged would exclude the pursuer no Certification could be granted contra non producta The Defender not being obliged to show any other Writes untill these which are produced be discussed The Lords Found also That the Defenders are not obliged to declare that they will use no other Writes than these which are produced The only difficulty being that the reason of Reduction could not be disputed until the Production be closed and if the Writes produced should be improven or reduced the Pursuer would be put to a new process of Improbation or return and crave Certification after Dispute in Causa which is incongruous in Form The Lords were of Opinion that in the same Process the Pursuer after the discussing of the Writs produced might thereafter crave Certification contra non producta D. 114. Fountain contra Maxuel eod die ALbeit the Lords are tender in Exhibition of Writs unless it be proven that the Defenders had the same the time of the intenting of the Cause or had fraudfully put the samen away before which is difficilis probationis Yet in an Exhibition at the instance of _____ Fountain against Maxuel of Nethergate they decerned to exhibite albeit it was not proven that the Defenders had the Writes at or since the intenting of the Cause In respect it was proven the Defender had medled with the Writs being in a Charter Chest and had offered to Transact concerning the same and so was presumed to have put them away fraudulently There being a great difference betwixt a transient having of Writes and a down right medleing and Intromission which being proven though it be before the intenting of the Exhibition doth oblige the Intrometter to be answerable for the same D. 115. Collector of the Taxation contra the Parson of Oldhamstocks 6. Decem. 1667. IN the Case The Collector of the Taxation contra the Parson of Oldhamstocks a Question was moved whether the Successor in the benefice be Lyable for the Taxation due by his Predecessors his Patrimony consisting most of Teinds But was not decided at this time D. 116. Mr. Rodger Hog contra The Countess of Home 11. Decemb. 1667. AN Inhibition being served upon an Obligement to warrand A Reduction was thereupon sustained though it was alledged there was neither Decreet of Eviction nor Liquidation of distress the pursuit being only a Declarator and the Decreet being only effectual after Eviction and Liquidation which accordingly was declared by the Lords D. 117. Inter Eosdem eod die BEtwixt the same Parties It was alledged that the Defenders Right was ratified by a Creditor who had a Comprysing expired so that the pursuer had no interest to question the Defenders Right It was Answered That the pursuer desired only such Right as was after the Inhibition to be reduced without prejudice of any other which he could not nor was obliged to debate hoc loco The Lords notwithstanding Found the Alledgance Relevant D. 118. Hamilton contra Lord Belhaven 13. Decem. 1667. RObert Hamilton Clerk pursued the Lord and Lady Belhaven to hear and see it declared that a Minute betwixt him and them concerning the Tenor and Articles Lybelled is null the clause irritant therein mentioned being committed The Lords refused to sustain the pursuit unless the Minute were produced Albeit it was alledged there could be no prejudice in respect a Minute of another Tenor could not be prejudged and a Minute of that Tenor Lybelled should be declared void upon the reason Lybelled D. 119. Rioch contra Eod. die AFter Litiscontestation upon an Exception of payment the Defender who was pursued as Lawfully charged to enter Heir Desired to be admitted to renunce which was refused because by the proponing the Defence Gesserat se pro haerede And Litiscontestation is a judicial Contract D. 120. Rannolph Davidson contra Richardson Eod. die A Ship being declared pryse Because the Loadning of Salt belonged to a Frenchman the Skipper and Steersman having declared upon oath that the Loadning was taken in at the Rotchel upon the account of the said Person The adjudication was quarrelled by a Reduction upon diverse reasons and in special these that the Deposition of the Skipper and Steersman were forced and extorted from them and that it was offered to be proven and that it did appear by diverse Letters Certificats and Documents produced that the Loadning did belong to the Owners of the Ship who were Citizens of Dantzick and Hamburg and were not the Kings Enemies The Lords in this Process Found that the Owners may be heard to reduce the Sentence upon reasons omitted by the Skipper 2. It being debated amongst the Lords whether the Skippers Declaration should so prejudge and
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
for the Lady Lockhart and Lermonth D. 162. Lord Hattoun contra Paterson 22. Feb. 1672. THE Lords of Exchequer having given the Escheat of the Laird of Craigie Carnagie to Andrew Paterson and the Gift being assigned to the Laird of Aytoun by the said Andrew a decreet was thereupon obtained against the Representatives of the Earl of Dundie for his intromission with the Goods belonging to the Rebel whereupon Adjudication or Comprysing followed of the said Earls Estate in Argyle which was Disponed by the said Laird of Aytoun to the Earl of Argyle Thereafter my Lord Hattoun Thesaurer-depute having gotten a second Gift pursued the the said Andrew Paterson before the Exchequer upon that ground That by Acts of Exchequer it was ordained that no Gifts of Escheat should pass without Back-bonds and the Clerks are Discharged to give out the same otherwayes and nevertheless viis modis the said Andrew had surreptitiously gotten out the said Gift and ought to give a Bond that being satisfied of what he can pretend to be due to him by the Rebel and of the Expences in passing the Gift he should denude himself in favours of the second Donator And that it should be declared that the said Gift should be affected with the said Bond as if it had been given ab initio And accordingly the Exchequer did decern and declared Whereupon the Thesaurer deput pursued a Reduction of the said Apprysing against Aytoun and the Earl of Argyl upon that reason viz. That the said Gift which is the ground thereof is restricted and qualified and that the said Andrew Paterson is fully satisfied of what is due to him It was Alledged for the Defenders that the Gift was pure and simple without any Back-bond and therefor the Assigney finding it was such and there being no Back-bond upon record was in bona fide to take a Right to the same And the said Decreet of Exchequer being supervenient and res inter alios acta could not be obtruded against a singular Successor but the Pursuer may have action against the Cedent The Lords Repelled the Alledgnce and Found that the Decreet and Back-bond do qualifie the Gift both as to the Donator and to his Assigney The said Decision appears very hard upon the grounds abovementioned and because Back-bonds are only personal obligements upon the Granters and do not qualifie Rights being extra Corpus Juris And his Majestie in granting Gifts of Escheat single or Liferent is in no other case than other Superiors as Lords of Regality having Right to single Escheats whose Gifts cannot be qualified in prejudice of a singular Successor but by provisions contained in the Body of the Right and the import of Back-bonds is only that the Granters being satisfied should be comptable for the superplus but there is not thereby any tye upon them not to dispose upon the same being comptable for the pryce or value of that which they dispone Colingtoun Reporter Having heard the cause at the side Barr. D. 163. Blair contra Blair 23. Feb. 1672. WItnesses being examined before Answer ex Officio It was desired that seing ex facto oritur Jus and the Lords being unclear to decide in Jure before the point of fact were cleared by probation and the point of Law and ground of their Decision is to arise out of the probation and therefore they may see and debate upon the same which was refused seing publicatio Testimoniorum by our Law is allowed in no case but in Improbations ex quaestione falsi MckenÈie alteri Lockhart c. D. 164. Neilson contra Elizabeth Arthur Eod. die ELizabeth Arthur being charged upon a Bond granted by her self suspended upon that reason that she was cled with a Husband the time of the granting thereof It was Answered she had a peculium and Estate setled upon her by her Father in these Terms that her Husband should have no interest therein but that it should be manadged by advice of the Freinds named by him for the behoofe of her and her Children And that the Sum charged for was borrowed and employed for her use The Lords Found the Letters orderly proceeded D. 165. Lady Lugton contra Hepburn and Creichton 13. June 1672. A Decreet being recovered before the Commissars of Edinburgh at the instance of the Lady Lugtoun against her Grandchild _____ Hepburne Daughter to the deceast Laird of Aderstoun Modifying 400. Merks Yearly for Aliment of the said _____ Hepburne by the space of 13. Years since her Birth The Lords in a Reduction and Suspension of the said Decreet modified the Sum thereincontained being 3500 Merks to the Tenth part of the Sum of 30000 Merks which was mentioned in the said Decreet and considered by the Commissars as the Estate belonging to the said Hepburne So that in respect and upon supposition of the same they modified the said Aliment And by reason the said Estate was intricate and litigious and possibly could not be recovered The Lords ordained the Pursuer to Assign the Tenth part of the said Estate not exceeding 3000 Merks which was done upon that consideration that the Aliment was modified in respect of the said interest And if ex eventu it should be Found that it could not be recovered and that she had no Estate it were unjust that she should be Lyable personally her Grand-mother being obliged at least presumed to entertain her ex pietate materna if she had no Estate of her own Monro Clerk D. 166. Grott contra Sutherland 14. June 1672. TWo Owners of a Ship being obliged by a Contract to Transport Goods to a certain part The Lords sustained Action against one of them in solidum for implement of the Obligements in the Contract being facti which is indivisible and they being socii exercitores so that the Fraught might have been payed to one of them and eadem ratione any one of them is Lyable and may be pursued in solidum Gibson Clerk D. 167. _____ contra _____ eod die THE Lords Found That a Declarator of Right which ought to be upon 21 Dayes being priviledged by a Bill which is periculo petentis should not be sustained being execute upon a shorter time And Ordained that the Writers to the Signet should nor insert in Bills and Summonds a priviledge dispenceing with the Law and the solennes induciae thereby introduced in favours of Defenders under the paine of 100 Merks for the first fault and deprivation for the second except in cases which by the Law are priviledged and named The President Advocate and others of their number to meet and consider what these should be D. 168. Henderson contra Henderson 20. June 1672. A Bond being produced to satisfy the production in an Improbation The Lords without further probation did Improve and Decern quoad the Defender in respect he refused to abide by the Truth of the same Gibson Clerk D. 169. Gray of Haystoun contra Forbes and Lindsay eod die WIlliam Gray of Haystoun having granted
Bond to Lindsay and the said Lindsay having Assigned the same to his Daughter The said William Gray Suspended upon a double poinding against the said Assigney and a Creditor who had arrested It was Alledged for the Creditor that the Assignation was made by a Father to a Daughter to defraud Creditors It was Answered That the Father by Contract of Marriage was obliged in case there should be no Heirs Male betwixt him and the Assigneys Mother to pay to the Heir or Bairn Female at her age of 14. years 4000. Merks and until then to entertain her And that the Assigney being the sole Bairn of the Marriage her Father had given the Assignation foresaid for implement of the said obligement The Lords hav ng considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage and that the Father should have other Heirs Male of his Body so that the Daughter should not succeed to the Estate and that both the Father and Mother are yet living and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage and his Daughter was his Appearand Heir whatsomever Therefore they Found that the case of the provision in favours of the Heirs Female did not exist and preferred the Creditor Lock-heart and Bannerman for Lindsay Bernie c. for Forbes Gibson Cl. D. 170. Fergusson contra _____ 21. June 1672. THE Lords Found That a Partie being within the Countrie the time of the citation upon the first Summonds and some time thereafter and goeing out of the Countrie before the second Summonds could not be cited at the Pear and Shoar of Leith upon the second Summonds without a warrand in the said Summonds to that effect D. 171. The Laird of Hermiestoun contra Cockburn Eod. die THE Lords Found That in the case and in all time coming where Witnesses are adduced before Answer they will only allow one Term so that upon any Diligence they will admit no Witnesses but those who are cited by the first Diligence Mr. Thomas Hay Clerk D. 172. Ramsay contra Carstairs eod die A Father in his Contract of Marriage being obliged to provide the Heir Female of the Marriage and to pay to her 20000 lib. at her age of 15 years and until then to entertain her there being only one Child and Daughter of the Marriage she and her Husband pursued the Father and his Curators he being furious to pay the said Sum. It was Answered That the said Provision being only payable to the Heir Female the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life specially seing both he and his Wife the Pursuers Mother were living and of that age that they may have Heirs Male of the Marriage or other Daughters And if they should have Male Children the Case and Condition of the Provision would deficere and not exist and if they should have moe Daughters the Pursuer could not have Right to the whole Sum acclaimed It was Replyed That the Father was in effect civiliter mortuus and the Pursuers would find Caution to refound in either of the said Cases The Lords Found the Defence relevant and that such Provisions being settled upon Heirs Female by reason and in case of exclusion of the Heirs Female of the Marriage when Lands are entailed to Heirs Male and there are no Heirs Male of the Marriage The Term of Payment could not be understood to be during the Marriage Strathurd Reporter Gibson Clerk D. 173. William Sandilands contra The Earle of Hadington Eod. die THomas the first Earl of Hadington having Disponed certain Lands with absolute warrandice in anno 1610 The now Earl of Hadington was pursued as representing his Great Grand-father to warrand the said Lands from Astriction to the Miln whereunto they were astricted before the Earl of Hadington Disponed the same It was Alledged That the Warrandice doth not extend to the case of Servitudes such as Common Pasturage Thirlage and such like which are not latent and may and are presumed to be known by Purchassers who ought and do ordinarly enquire and inform themselves concerning the condition and burdens of the Lands they intend to purchase specially in the case in question the multure being not exorbitant It was Replyed That in Law where praedia either rustica or urbana ut optima maxima are Disponed they are Disponed as Libera And that the Lands in question are so Disponed it is evident in respect the Warrandice is absolute and they are Disponed cum molendinis multuris It was Duplyed That the Romans were in use to Dispone either simply or cum ista adjectione praedia ut optima maxima the import whereof was servitutem non deberi But where Lands are Disponed simply it is construed and presumed in Law that they are Disponed talia and such as they are And with such accessories either as to burden or advantage as tacite veniunt albeit these be not exprest as Servitudes either Active or Passive and as to the Warrandice it is of the ordinary Stile without mention of Servitudes and it appears from the stile and conception of the ordinary clause of Warrandice and the speciality thereinmentioned viz. Wards Non-entries Inhibitions Apprysings c. That such Incumberances are only intended whereby the Right or Possession of Lands or the Mails and Duties or any part of them are evicted Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire and seing his Corns must be grinded it is not a material prejudice that they should be grinded rather at one Miln than an other and it appears by the Disposition that it was not actum and treated that the said Lands should be Disponed ut optima maxima the Warrandice being in the ordinary terms without mention of Servitudes And the Clause cum molendinis is only in the Charter and Tenendas and is ex stilo and imports only freedom of Thirlage as to the Disponer The Lords upon the foresaid Debate And that the said Miln was a Miln of the Barony of Torphichen whereof the Lands astricted are a part and that the same were astricted before the Earl of Hadington acquired the same they Found the Defence Relevant and AssoilÈied D. 174. Creditors of Tarsappie contra Kilfanes 23. July 1673. THE Lords upon Debate among themselves were of the opinion that a confident person having got a Disposition from a Debitor may at the Debitors desire satisfy such Creditors as he thought fit there being no Diligence done by other Creditors And as the Debitor might have done so himself so the Trustee may do And that it is provided so by the Act of Parliament 1621. They Found that the Trustee if he got any Ease by composition should apply the benefite thereof for satisfaction of the other Creditors Item That
he cannot make voluntar payment in prejudice of a Creditor who has done Diligence Gibson Clerk D. 175. Kilbirny contra Cuninghame 24. July 1673. IN an Adjudication upon the late Act of Parliament The Lords modified the price to be 18. years purchase as to the certain and constant Rent and 9. years as to casual Rent of Coal Gibson Clerk D. 176. Murray contra The Tutor of Stormount 25. July 1673. BY a Contract of Wadset the Wadsetter being lyable to compt for the excrescence of the Duties more than should satisfie the Annualrent The Lords in a Process for Maills and Duties Found the Exception Relevant that the Pursuer was satisfied of the Sum upon the Wadset by his Intromission without Declarator D. 177. Ker contra Ruthven eod die THE Lords Found That the Estate of the Earl of Bramford being settled upon the Lord Forresters Son by Act of Parliament he could not have it but cum sua causa and the burden of his Debts Item They Found That the Earl having entertained his Grand-child the Pursuer was to be presumed to have done it ex pietate avita the Earl being a generous person and having an opulent Estate and his Grand-child having nothing for the time but the Debt in question whereof the Annualrent was provided and belonged to his Brother Monro Clerk D. 178. Creditors of Hugh Sinclair contra Annandale 26. July 1673. THE Lords Found That a Compryser upon Debts anterior to the Debitor's Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat Mr. Thomas Hay Clerk D. 179. Mr. John Bayn contra Caivie eod die THE Lords Found That a Tack being questioned as antedated to obviate an Inhibition was suspect being rased in the Date So that the same seemed to be vitiate and an other year superinduced And therefore was not a valide and probative Writ in prejudice of the Inhibition unless it could be adminiculate by some Adminicle before the Inhibition Mr. Thomas Hay Clerk D. 180. 2. June 1674. THE Kings Majesty having by two Letters to the Lords of Session presented Mr. David Balfour of Forret and Mr. Thomas Murray both Advocates to be Lords of the Session It was moved by one of the Lords that seing by the Law and Acts of Parliament these who are to be admitted to be Lords of Session should be tryed Therefore the Tryal should be such as is intended by the Law the very Notion of Tryal importing at least a serious if not a strict and exact way of Tryal This was moved because the way of Tryal had become of late so perfunctorious and dicis causa that it was ridiculous and in effect a Mock-Tryal Some of the Lords being appointed to examine these who were named by the King and after they had asked some trivial Questions having made Report That they found them qualified albeit it was not only known to the Examinators but to all the Lords and notour to the World that they were altogether Ignorant both of Law and Practique and did acknowledge it themselves not dareing to expose themselves to sit in the Outer house as Ordinaries they prevailing with others of the Lords to go out and officiate for them as Curats 1. It was urged that the Estates had considered the Interest of the Kingdom all Estates being concerned in that Judicatory that the Lords should be Persons of great Abilitie and Integrity seing their Lands and Fortunes and greatest Interests are the Subject of their Jurisdiction and Decisions and therefore it was provided by diverse Statutes and Acts of Parliament they should be qualified Persons and found upon Tryal to be such 2. His Majesties Letter required that the Persons now named should be examined effectually 3. By diverse Acts of Sederunt and in special one upon the Kings Letter for the time the way of Tryal is prescribed which is most exact 4. The Oath of Admission that the Lords should be faithful has and ought to have Influence upon all their Actions as Lords of the Session that they should be done faithfully and the Tryal of Lords for the Reasons foresaid being an important Act of Duty ought to be done faithfully and sincerely and cannot be done otherways without breach of Oath 5. To pretend to obey the Law and the Kings Letter which requireth an effectual Tryal in a way which is superficiary and evidently ineffectual it is a Cheat and Circumventio Legis which in others is hateful but in Judges who are Antistites Juris is abominable and inconsistent with the Honour and Integrity that should be expected from the Judicatory 6. If there were no Tryal at all the Lords would be passive if Persons not qualified should be named but being enjoyned to try effectually if they receive them without an effectual tryal they are not free of blame and are accomptable to God and his Majesty and to the Parliament To all these Reasons It was Answered That at this time the way of Tryal that had been for a long time should be continued at this time and that the Motion was upon some design The Mover did purge himself upon Oath that he had no Design but to do duty and did attest the President that before this occasion they had spoken often to that purpose and did represent that this is the fit time to put the Law and Statutes in execution The Persons named being Advocats and Persons presumed to be able to undergo the Tryal so that it cannot be thought that there is any thing of Design against their Persons That it cannot be denyed but the late way is abusive and antiquitas erroris or abusus cannot be thought and pleaded to be custom That in the Year 1629. the Lords by an Act of Sederunt had renewed and ratified all the former Statutes anent the Tryal and Admission of the Lords and ordained them to be observed That since that time the Troubles interveened and continued long so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour It was Carryed That the Examination should be as it has been of late and upon the Report of Gosford and Craigie appointed to examine them they were admitted Gosford was of Opinion that there should be another way of Tryal D. 181. Bogie contra The Executors of the Lady Oxenford 4. June 1674. THE Executors of the Lady Oxenford being pursued at the instance of a Legatar did in the Compt before the Auditor give in an Article of Discharge viz. That the Expences of a Process at the Executors instance should be allowed It was Answered That if the Executor had not pursued that Process there was as much free Gear as would have satisfied the Legacie and the Executor had not prevailed and if they had prevailed the benefit would only have accresced to the Executor and not to the Legatars and therefore penes quem emolumentum c. and seing they would have had no benefite they should have no
be Examined for clearing the Trust They Found That by the Probation the Trust did not appear and that the said Declaration in Lecto could not prejudge his Heir unless there had been some further evidence that the Declaration was emitted by the Doctor of his own accord and upon conviction and for Exonering his Conscience which did not appear by the Probation Lockheart and Falconer alteri Long formacus and Cuninghame Gibson Clerk Concluded Cause D. 187. Lady Spencerfield contra Hamilton 10. June 1674. IN the case of the Lady Spencerfield contra Robert Hamilton of Kilbrakmount The Lords Found that the Alledgeance viz. That the Defender could not be Lyable as Intrometter because there was a Gift given of the Defuncts Escheat being Rebel is not Relevant unless the Gift were either declared or were to the Defender himself or that he had Right from the Donator For in the first case he is in condition parallel with an Intrometter in the case of an Executor confirmed and cannot be said to be intrometter with the Goods of a Defunct and bona vacantia the Right of the same being in a living person per aditionem and by confirmation and a third person Intrometting where there is no Declarator who has not the Gift himself nor a Right from the Donator is not in a better case than an Executor decerned And in the case of a Donator Intrometting or the intromission of any other having Right from him there is the pretence and colour of a Right in the person of the Intrometter which is sufficient to purge vitious Intromission They Found in the same case that a person entering to the possession of the Defuncts House by warrand of the Lords Their possession of the Goods in the House doth not infer Intromission unless they make use of such Goods as usu consumuntur or dispose of such Goods as are not of that nature as Beds Tables and such like Robert Hamilton Clerk D. 188. Freeholders of Linlithgow contra The Commissioners to the Parliament 12. June 1674. IN a Suspension at the instance of the Freeholders of Linlithgow-shire against their Commissioners to the Parliament The Lords Found that if the Prorogationes and Recesses of Parliament be for a considerable time so that the Commissioners do or may go home the Commissioners should not have their Fies or Charges dureing the same 2. That if the prorogation be for a short time and the Commissioners having their Residence at a little distance in Edinburgh or Linlithgow shire do or may go home they ought not to have Fees dureing that time 3. If there be Articles sitting dureing that time and they do not go home tho they be not upon the Articles they should have their Fees Because they are concerned to know and inform themselves what is in Agitation in the Articles Newbyth Reporter Monro Clerk D. 189. Bailly Boid contra Store November 7. 1674. THE Lords sustained a Discharge granted by a Master to his Tennent upon payment of his Duty tho it was neither Holograph nor Subscribed before Witnesses but pretended to be subscribed by the Granter Which the Lords did in respect of the Custom and that Masters and Tennents are in use to give and take Discharges without Witnesses And that in the case of Writes Letters and Bills betwixt Merchants the Lords are in use to sustain them tho they want Witnesses and there is the same if not more reason in the case of Tennents by reason of the great and exuberant confidence betwixt them and their Masters Some of the Lords thought it hard to recede from the Law there being no limitation or exception in behalf of Tennents ubi Lex non distinguit nec nos And that there is a great disparity betwixt Merchants and Tennents Compts Letters and Bills of Exchange and other Writs of that nature being secret Transactions betwixt Merchants and their correspondents whereunto Witnesses and other persons neither are in use to be nor is fit they should be privy Whereas Discharges by Masters to Tennents are in use to be and there is no inconveniency that they should be subscribed before Witnesses and there is no difficulty to get Witnesses to them and if they want Witnesses and be not Holograph Masters may be prejudged It being easy to imitate and forge a single subscription and there being no means of improbation of the same D. 190. The Town of Innerness contra Forbes of Colloden and Robertson of Inches and others eod die THis case having been Agitated not without some heat amongst the Lords themselves I thought fit to give an account thereof at greater length than I have used in other Cases and Decisions The Town of Inverness having Charged the said _____ Robertson of Inches and Colloden and other Feuars who hold the Forrest of Drakies and other Lands and Milns and Fishings of the said Burgh for payment of their proportions of a Stent imposed upon them for the use of the Town And they having Suspended upon that reason that the said Stent was unequal as to their proportions and that the Town had not an Arbitrary Power to impose Stents upon their Neighbours and Feuars unless there were an unavoidable at least a pressing necessity and occasion relateing to the good and interest of the Burgh and in that case the Neighbours and Feuars were to be Lyable only in subsidium In so far as the Patrimony of the Town and Common Good should be short and not extend to defray the same The Lords Sir John Gilmour being President for the time did by their Decreet of Suspension Find the Letters orderly proceeded But withall did regulate the way of stenting to be according to the method and Rules set down by the Lords as to the future which are contained in the said Decreet and acquiesced to by the Suspenders the Decreet bearing to be of consent and containing only a Protestation that the Suspenders should not be Lyable to any Stent for maintaining and prosecuting Pleas against themselves Thereafter the Feuars being charged upon another Stent did Suspend upon that reason only that the Regulation and Method appointed by the Lords had not been observed and did intent a Declarator that they should not be Lyable to Stents but such as should be imposed in the way and according to the method foresaid Tho there was no other reason in the said Suspension nor conclusion in the said Declarator but as is immediatly related yet another reason was thereafter insisted upon both in the Suspension and Declarator and they did plead that they were exempted and ought not to be Lyable to any Stent upon any account or method whatsomever by reason that their Lands and in special the Forrest of Drakies were Feued to them for a Reddendo and Feu-duty contained in their Infeftments pro omni alio onere The Case not being fully debated at the Bar Some of the Lords conceiving that the Lands of Drakies were not a part of the Original and Ancient
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
Et non creditur Clerico nisi quatenus constat ex Actis And 2. That there neither was nor could be a Decreet in the said Process In respect the said Suspension was upon other reasons that were Relevant and compensation being in effect satisfaction and the last exception the said Reasons ought to have been first discust viz. That there were diverse Arrestments at the instance of Creditors which should have been purged and that Sir William had Assigned the Debt whereupon he had charged and the Assignation was intimate So that the Suspender could not be in tuto to pay unless the consent of the Assigney were obtained and that the said Sir William was at the Horn and his Escheat gifted and that the Donator did not concur nor consent 3. Tho' there could have been a Decreet and the Arrestments had been purged and the Assigney and Donator consented yet the samen not being Extracted the Suspender might pass from his Reason of compensation seing res was integra before Extracting and the Suspender may eike and verify any other reason that is emergent And there had arisen a most relevant Reason and Defence to him upon the said Act of Parliament anent publick Debts of which he ought to have and may plead the benefite in regard Acts of Litiscontestation and Decreets are Judicial Transactions and Contracts and as in other Contracts there is locus poenitentiae before they be perfited in Write so in Acts and Decreets before they be Extracted Parties are not concluded as verb. g. even after Litiscontestation before the same be Extracted a Defence may be proponed and in Declarators concerning Clauses irritant tho Parties will not be admitted to purge after Sentence yet before Extracting they will be heard And even by the Common Law albeit ubi res transit in rem Judicatam sententia non retractatur ex Instrumentis noviter repertis yet before Extracting of the same if Writes be Found which will elide the Pursuers Lybel they will be received It was Answered for the Creditors That in this case res was not integra because the Suspender had so far acquiesced that in effect he had payed the Debt Compensation being equivalent And if before extracting he had made actual payment there would have been no necessity of extracting the same and in this case not only there was solutio ipso Jure in respect of the said Compensation sustained but de facto the Lord Balmerinoch had payed 3 or 4000 merks in satisfaction of the Debt charged for the Compensation being so far short and the Creditors had intented exhibition of a Discharge granted by Sir William Dick to the said Lord Balmerinoch of the foresaid Sum of 4000 merks and a Declarator that in respect of the said Compensation the said Right granted by the said Sir John Smith was extinct The Lords at the desire of the saids Creditors having examined diverse persons anent the said Minut and the giving up of the said Assignation and anent the having of the said Discharge granted by Sir William Dick to Balmerinoch the Creditors at length did pass from their Compearance And now the Cause being again advised the Lords did adhere to their former Interloquitor in Anno 1664. And did Find That before extracting Balmerinoch might pass from his Reason of Compensation and decerned in the said Process at Balmerinoch's instance against the Tennents of Northberwick Reserving to the Creditors their Action of Exhibition and Declarator as accords D. 204. Kinloch contra Rate 15. Decemb. 1674. THE deceast Mr. Robert Kinloch Portioner of Luthrie having granted after he was married a Liferent Right to his Wife by Infeftment in some of his Lands in satisfaction of any further Provision did thereafter give her an additional Jointure and Infeftment in other Lands after which he did give a Right of Annualrent forth of the Additional Lands to his Daughter Janet Kinloch The Daughter and her Husband Mr. John Dickson did intent a Poinding of the Ground upon the said Right of Annualrent in which Process Jean Rate Relict of the said Mr. Robert compeared and defended upon her foresaid Rights being anterior to the said Infeftment of Annualrent It was Replyed for the Pursuer That as to the first Right for Provision of the Wife she did not make question but that being in Satisfaction of any other Provision as said is the additional Right granted thereafter was for Love and Favour and Donatio inter virum uxorem and revocked tacitely by the Pursuers Infeftment of Annualrent The Lords Found accordingly That the said posterior Right was revocked by the Right of Annualrent pro tanto without prejudice to the Relict of the Superplus if any be the Annualrent being satisfied Newbyth Reporter Gibson Clerk D. 205. George Drummond contra MenÈies of Rotwell 16. December 1674. IN the Process at the instance of George Drummond for payment of a Sum due by Alexander MenÈies of Rotwel as intrometter with the Debitors Goods It was Found as in diverse Cases before That the pretence that the Defunct was Rebel and his Escheat gifted doth not purge vitious Intromission unless it be alledged that the Defuncts Escheat was gifted and declared before intention of the cause or that the Defender did intromet either by vertue of a Gift to himself or by Warrand and Right from the Donator for the Defenders Intromission tho the Gift was not declared before the intention of the Cause In respect if there was a Gift declared before the intention of the Cause the Defender is in the same case as if there were an Executor confirmed before the intenting of the Cause and if he had either the Gift himself or a Right from the Donator before he did intromet his Possession ab initio being by vertue of a Title tho not perfected cannot be said to be vitious and quivis Titulus etiam coloratus purges the vitiousness of the intromission Strathurd Reporter Gibson Clerk D. 206. Kelhead contra Irving and Borthwick eod die JOhn Irving Merchant in Drumfries having furnished Mournings Winding-sheet and others necessary for the Funerals of the deceast Earl of Queensberry did take a Bond for the Sum of 1424 merks from the Countess Dowager Relict of the said Earl which tho it did bear only that Narrative that the Lady was addebted to the said John without relation to the Cause foresaid yet it appeared it was for that Cause In swa far as the said Countess being confirmed Executrix to her Husband had obtained an Exoneration and the foresaid Debt contracted for the Funerals was one of the Articles of the same The said Countess having deceased the Earl of Queensberry her Son was confirmed Executor to her and a Decreet being obtained against him at the instance of the said John Irving for the foresaid Debt he suspended upon multiple Poinding against the said John Irving and the Laird of Kelhead and James Borthwick and certain other Creditors The said Laird of Kelhead alleadged that he ought to
being one of his Lawyers And therefore tho it might be questioned upon Minority as to any prejudice or disadvantage the Minor may pretend to have by the same yet it will stand as an Homologation of the said Bond as to the truth of the same unless it were offered to be improven by a positive qualification of Falsehood The Lords having considered the Inconvenients on either side if certifications for not production of principals should be loosed being the great surety of the People And on the other part if they should be Snares and Parties should pursue maliciously Improbation having viis modis got the principal Writes out of the Register or known they had miscarryed They Found In respect that Mr. David Thoirs having taken a Right after the matter was litigious by a Charge and Suspension of the Minute betwixt Tolquhone and the said John Forbes the Great Grand-child so that the said Mr. David was in the same case as if the said John were Pursuer and was content to state himself in that case And in respect of the Specialities of this Cause and Adminicles and Homologations foresaid that therefore the said Extract ought to satisfy the Production and the Certification ought not to be Extracted D. 211. Pittarro contra E. Northesk 5. January 1675. THE Earl of Northesk having taken an Assignation to a Bond granted by the deceast Laird of Craige and Earl of Dundee to Margaret Carnagie and her Children for 1000 Merks and having Comprysed thereupon Craigs Estate he did after the Comprysing give a Bond to the said Margaret Carnagie and her Children that in case he should recover payment he should make payment to them of the foresaid Sum Sir David Carnagie of Pittarro being Debitor to the said Earl in the Sum of 2000 Merks Suspended upon that Reason that the said Margaret and her Children had Assigned to him the said Back-bond granted by Northesk and that the said Earl had Disponed the Right of the said Apprysing to the Lord Hattoun And therefore became Lyable to pay the said Sum to the Suspenders Cedent and the Suspender may and does compense upon the said Bond pro tanto It was Answered by the Charger That the Comprysing did neither belong to the Suspenders Cedent nor was to their behoof the said Bond granted by the Laird of Craig being Assigned ab initio without any Back-bond And the Comprysing being deduced before Northesk granted the said Bond And by the said Back-bond he was obliged only to pay the said Sum in case he should get payment and he was so far from getting payment of the said Sum that having comprysed not only upon the said Bond granted to Margaret Carnagie but for other Debts exceeding far the said Debt due to her yet got payment of neither It was Replyed by the Suspender That he was not concerned to Dispute whether he got payment or not but the Charger having Disponed the Comprysing as to the said Sum without the consent of the said _____ Carnagie and her Children and without the Burden of the said Back-bond it was equivalent as if he had got payment it being all one upon the matter as to the interest of _____ Carnagie whether Northesk had got payment of the said Sum or had disponed the Comprysing in sua far as concerns the same The Lords In Respect of the conception of the Bond granted by Northesk Found That either he should procure a Retrocession of the said Bond and Comprysing thereupon pro tanto or that he should pay the Damnage and Interest sustained by the Suspenders Cedent through Northesks granting of the Right of the said Bond and Comprysing to Hattoun And in that case that the Damnage and Interest should be presently liquidate and being liquidate should be a ground of compensation Glendoich Reporter Monro Clerk D. 212. Eod die IT was debated this day among the Lords whether a Bond being granted by a principal and two Cautioners bound conjunctly and severally and the Cautioners not bound to relieve one another if one of the Cautioners should take Assignation to the Bond and should pursue the other the said other Cautioner will have a defence upon that Ground That albeit they be not oblidged to relieve one another pro rata yet that the said obligement inest in sua far as they are bound conjunctly and severally Most of the Lords enclined to find that the pursuer ought to relieve the Cocautioner pro rata and had not action but for his own part But some of the Lords were of another opinion that there being no obligement upon any of the Cocautioners to relieve one another one of the Cautioners paying entirely and getting an Assignation in effect emit nomen And tho both the Cautioners be oblidged conjunctly and severally in relation to the Creditor yet there is no Transaction or obligement betwixt the Cautioners themselves every one having actio mandati as to the principal for their relief which inest tho the principal were not bound to relieve them expresly but ought to be considered as quilibet and Strangers one to another But because the Lords were divided and it was alledged on either hand the case was formerly decided the Decision was delayed this day Vide infra 28. January 1675. D. 213. Laird of Hempsfield contra Bannantine eod die THE Laird of Hempsfield with certain Cautioners for him having granted a Bond of 6000 Merks to the deceast James Bannantine and his Wife the longest liver of them two and after their decease to John Bannatine their Son whereupon Inhibition was execute against the principal and Cautioners And the said John Bannantine did pursue a Reduction and Improbation against these who had acquired Rights after the Inhibition It was Alledged That the Pursuer had no interest because the said Bond was Blank in the name of the substitute and the pursuer could not be understood to be the Bairn to whom the Sum is to be payable after the decease of his Father and Mother seing he was not born the time of the granting of the Bond And as to the Inhibition it was not at the instance of the Pursuer but of his Father and Mother It was Answered That the Bond was opponed bearing the Pursuers Name and tho the Bond had been Blank and the Pursuer not born when it was granted the Father might have filled up any of his Bairns Names as he thought fit And as to the Inhibition it was at the instance of the Father James Bannantine who was Fiar and did accresce to the Pursuer being substitute in the Fee after his decease The Lords Repelled the Alledgance It was thereafter Alledged That the Pursuer was satisfied of the Debt in sua far as either the Debitor or Cautioners had payed the same at least a part thereof and did satisfy pro tanto or some other persons having acquired their Lands after the Inhibition had given Money to the Pursuer or his Father to pass from the
Inhibition as to them which ought to be allowed as payment pro tanto It was Answered That the Alledgance is not Relevant unless it were in these Terms that the Pursuer or his Father had accepted what was payed by the saids persons in satisfaction of the Debt pro tanto otherwayes that there is no solutio but only a Transaction betwixt the persons foresaid and the Pursuer to free themselves from Trouble and of a Plea and what was given was not in satisfaction of the Debt in whole or in part but upon the account foresaid And seing the Creditor having inhibite so that his Inhibition did affect diverse Lands or having diverse persons bound to him as Cautioners might warrantably pass from his Inhibition as to some of the Lands and discharge such of the Cautioners as he thought fit he might also take a consideration for doing the favour foresaid The Lords thought That if it should be allowed to Creditors to make such Transactions and what they should get upon account of the same should not be allowed in payment they might get more nor the double of their Debt at least more than Principal and Annualrent and that it would be the occasion of usury They Found the Defence Relevant that what should be proven to be given eo nomine should be imputed in satisfaction Gibson Clerk D. 214. Innes contra Innes 7. January 1675. BY a Contract of Marriage a Sum being provided to the Husband and his Wife and to the Heirs Male of the Marriage whilks FailÈieing to the Fathers Heirs Male whatsomever An Inhibition upon the said Contract at the instance of the Eldest Son of the Marriage and Reduction thereupon was not sustained because the Father was living and the Son neither was nor could be Heir to him In respect the Father was living And tho he were dead the Son could have no Right unless he were Heir in which case he would be obliged to warrand Glendoich Reporter D. 215. Laird of Luss contra E. of Nithsdale eod die A Bond being alledged to be granted by the Earl of Nithsdale in anno 1621 to one Colquhone and his Wife for 6000 Merks And a pursuit being intented thereupon It was Alledged That the Bond was most suspicious being so Ancient and nothing done thereupon and in respect of other great presumptions viz. the quality and condition of the said Adam when the said Bond was granted being designed the Earl's Servant And that it was improbable he could have so much Money to lend his Master or that he and his Heirs should have so long wanted the same And that it appears that the Bond has been Blank ab initio the Creditors Name being filled up with another Ink And the said Adam being designed to have been the Writer of the Bond and yet where it bears that he is Writer it does not bear the said Adam which it would have born if his name had been filled up from the beginning And it appears that the Earl being known to be a person negligent and being at London for the time and having to do with Money might have given the Bond to the said Adam his Servant for raising of Money and that he forgot to call for it The Lords Found That the said Bond could not be taken away upon the presumptions foresaid unless it were either prescrived or the Defenders would offer to improve it Gibson Clerk D. 216. Mcintoish contra Frazer 9. January 1675. McIntoish pursued Frazer of Streichen for payment of a Sum due upon Bond In which Pursuite two Defences being proponed viz. Prescription and Payment and a Reply made to the first viz. Interruption by a pursuit and Litiscontestation being made upon the Defence of payment and the said Reply It was Alledged when the Cause was to be advised contra producta viz. That the Summonds and Execution thereupon produced for proving Interruption did not prove the same In respect the Summonds were never called nor any Document taken in Judgment thereupon And as to the Discharge produced It was Alledged That it was granted by the persons thereinmentioned as Curators to the Pursuer and was not subscribed by the Pursuer himself as it ought to have been there being a great difference betwixt Tutors and Curators In respect Tutors must act for the Minor and are Authors as to all deeds done by them but Curators do only concurr and ought to advise and consent to the deeds of their Minor which otherwayes are not valid The Lords did Find the Discharge did not prove and it could not be obtruded to the Pursuer who had not subscribed the same and did also Find that the Summonds and Execution did sufficiently interrupt Concluded cause Actor Falconer alteri Seaton Monro Clerk D. 217. Town of Edinburgh contra Earl of Loudoune eod die THE Lady Yester having Mortified a certain Sum of Money for the Poor in certain Paroches in the South and having employed to the End foresaid the foresaid Sum upon Bond or Contract granted by the Town of Edinburgh The Ministers of the said Paroches did pursue the Town of Edinburgh to hear and see the Tenor of the said Write to be proven and that being done that they should be decerned to pay And did sufficiently prove the Tenor of the same In the Process against the Town There was a Defence proponed viz. That my Lord Loudoune who had Interest in the said Mortification had got payment of the said Sum from the Town of Edinburgh which they offered to prove by his Oath The Lords having Ordained his Oath to be taken before Answer And he being Summonded to that effect he was holden as confest And having thereafter upon a Bill Desired to be Reponed to give his Oath and being Reponed he was holden as confest the second time And in respect that the said Defence was not proven by his Oath The Lords proceeded and decerned against the Town The Town of Edinburgh having intented Process against the Earl of Loudoune for refounding the said Sum upon that medium that the same was formerly payed to him and that he had confessed at least was holden as Confest which is equivalent as to the payment of the said Sum. It was Alledged That his being holden as Confest in the Process foresaid did operate only that the Defence referred to his Oath was not proven but could not be a Ground of pursuite against himself unless it were proven by his Oath that the said Sum was payed to him and he desired to be Reponed to his Oath It was Answered That he being twice holden as Confest there was no reason to Repone him and his being holden as Confest doth operate in Law alsemuch as if he had confessed the said Sum Seing through his Contumacy the Pursuers are prejudged And he cannot pretend that he was not a Party in that Process seing he was holden as Confest and in the same Process craved to be Reponed and was Reponed as said is And tho he had not
been called ab initio in that Process yet being called incidenter for proving of an Alledgance by the certification foresaid he became Partie therein And as when an incident Diligence is raised against a haver of Writes for proving of an Alledgance and the having thereof is referred to the Oath of the Defender in the incident if he be holden as confest tho the Alledgance be not proven the Pursuer of the Incident will have Execution against him as Haver and for the Damnage and Interest sustained through his Contumacy so it ought to be in this case The Lords Tho the Earl of Loudoun's presumptive Confession being holden as confest as said is be a convinceing evidence that the said Money was payed to him yet they had that respect to him both as to his quality and integrity that they would have Reponed him if he had compeared himself or had written to the Lords that he desired to be Reponed and did intimate alse much to his Procurators and to that effect did give some time but no Return being made they proceeded and sustained the pursuite at the instance of the Town of Edinburgh upon the medium foresaid Monro Clerk D. 218. Letter by the Lords of Session to the King 12. January 1675. MY Lord Lauderdale His Majesties Secretary having writen to the President concerning the abovementioned Process betwixt Captain Gordon and the Suedes anent the Ship called the Wine Grape That the Suedish Envoy had made Application to his Majesty and had represented That the Decreet against the Strangers was caryed but by two Votes and had given in a List to his Majesty of those that were for and against the said Decreet with diverse Reasons against the same It was thought fit that a Letter should be drawen to His Majesty containing the Grounds whereupon the said Decreet proceeded which being done by those who were appointed by the Lords some of the Lords did object against the same That they did mention the Lords indefinitly to have given the said Decreet Whereas His Majesty was informed of the contrary and the Information was true and therefore it was desired it should bear That upon the Votes of the major part which is usual in all Cases the Decreet was pronounced Specially seing the said Letter did containe the Grounds of and did assert the Justice of the said Decreet So that these who had voted against the same could not belye themselves and put under their hand the contrarie of what they had voted And albeit in all Judicatories even in Parliament what is done by the plurality doth overrule and conclude the Dissenters so as to submitt to the same Yet they are not obliged to maintain or assert the Justice of a Sentence and Act that they had been against in their Judgment and vote It was notwithstanding carryed by plurality That without the amendement foresaid the Letter should be subscribed by all the Lords the President having promised to write to my Lord Lauderdale what was truly res gesta when the said Decreet was given And upon that assureance some of the Lords declared when they subscribed that they subscribed not their oun sense but the sense of the Court And though they were concluded as said is yet they were not convinced D. 219. Glendyning contra the Earl of Nithsdale 13. January 1675. WIlliam Glendining having pursued the now Earl of Nithsdale as Heir to Robert the late Earl of Nithsdale his Father for fulfilling a Minute betwixt the said Robert Earl of Nithsdale and William Glendinning of Lagan from whom the Pursuer had Right and for payment of the half of the duty of the Lands of Douphingstoun conform to the said Minut and Litiscontestation was made in the cause and for proving the rent of the saids Lands of Douphinstoun It was craved that the Depositions of witnesses that had been adduced in the like process intented against the said Earl as representing his Father for implement of the said Minute should be received in this Process But the Lords having considered that the said Earl did not represent his Father active but was pursued only upon the passive Titles and that this process against the now Earl is not against him as representing the last Earl neither was it alledged that he represents him Therfor they Found that the said Depositions could not be repeated in this process Seing res was inter alios acta and acta in uno judicio non probant in alio nisi inter easdem personas or these who represent him D. 220. Edmiston contra Mr. John Preston eod die WAuchope of Edmiston and his Lady as Executors to the deceast James Raith of Edmiston pursued Mr. John Preston lately of Haltrie Advocate for payment of the Tack duty for a Seam of Coal belonging to Edmiston and set to him for certain Years It was alledged for the Defender That he ought not to be lyable for the Years in question because having entered to the Possession of the said Coal and having payed the Duty for the time he possessed he was forced to cease from working in respect the said Coal came to be in that condition that it could not be wrought partly by reason of the defect of Roof so that the CoalÈiers neither would nor could work without hazard and partly by reason of bad Air It was Replyed That the Defender having accepted a Tack of a Subject lyable to such hazards eo ipso he had taken his hazard and was in the case as if he had acquired a Right to jactus retis It was Duplyed That alea and jactus retis and spes in venditione may be and is understood to be sold but in Locatione spes and alea is not thought to be set unless it appear by the Contract that the Conductor should take the hazard seing it is de natura of Contracts of Location that fruitio is understood to be given and set and that merces should be payed ex fructibus And where the Conductor cannot frui upon occasion of an insuperable impediment which does not arise either from his dole or culpa or negligence as in this case remittitur merces as is clear not only when the thing that is set is a subject not lyable to so much hazard but when it is contingent as when Gabells or Custums are set or Fishings or Milns or Coals if there fall out such an impediment as doth interrupt the fruition and perceptionem fructuum as if there be Pest and War in the case of Custums or if Herring should not be got at all or if upon occasion of inundation Milns should be unprofitable or Coal-heughs should be drowned or burnt The Lords before Answer Thought fit that there should be conjunct Probation allowed to both Parties anent the condition of the Coal and the Defenders desisting and ceasing from working thereof and the Occasion of his desisting and if the impediment was insuperable Craigy Reporter D. 221. eod die APPlication being made to the Lords
by a Bill given in by a Widow Desireing that she may be allowed to intromet with the Cropt and Goods pertaining to the Defunct without hazard of vitious Intromission The Lords thought That such Warrands being Voluntariae Jurisdictionis and the Commissaries being entrusted for securing the Estate of Defunct persons to the nearest of Kin and Creditors and other persons having interest did Remit the Petitioner to the Commissars of the place Sir David Falconer Younger was for the Petitioner and subscribed the Bill D. 222. Meldrum contra Tolquhone 20. January 1675. IN a Declarator of Escheat at the instance of Meldrum contra Tolquhone It was Alledged That the Horning was Null because the Party was Charged only upon six days albeit he dwelt benorth the Water of Dee And by the Act of Parliament 1600. cap. 25. All Charges of Horning against persons dwell and benorth Dee should be upon 15. dayes at the least And by the 138 Act Parl. 12. K. Ja. 6. It is statute that in case any Denounciations of Hornings should be at the Mercat Cross of Edinburgh upon Charges upon unlawful and impossible Conditions the same and Horning thereupon should be Null And that there was a Decision in Duries Book in Anno 1625 that Hornings even upon Bonds against persons benorth Dee were Null It was Answered That the Act of Parliament in Anno 1600 was only in the case of Hornings upon Citations or Charges to find Law borrowes or for compearing before the Council as appears by the narrative of the said Act which doth interpret and regulate the dispositive Words of the Act. And that the Act of Parliament in Anno 1592. doth not militate in the case of Hornings upon a Clause of Registration seing after that Act until the said Act 1606 such Clauses that Hornings should be upon 6 dayes were not thought and de facto are not impossible And as to the practique It was Answered that there was a late practique in Anno 1664 upon a Debate in the Innerhouse in the case of Philorth contra Frazer Whereby it was Found That the Act of Parliament 1600. is to be understood in the case foresaid where Hornings are upon Charges of the nature foresaid for appearing before the Council and such like but not in the case in question and others of that nature where Hornings are upon Bonds and Clauses of Registration therein contained which do bind and cannot be questioned by those who do oblidge themselves The Lords considered that the narrative of the said Act doth clear the meaning of the dispositive words and there needed not to be a Law and remedy as to Hornings upon Clauses of Registration seing Parties could not help themselves as to Charges to compear before the Council and others of that nature without a Law But they were Arbiters and could make a Law to themselves as to Clauses contained in Contracts or Writes if they thought them grievous or impossible And that there appeared to be a singularitie in the case mentioned by Durie seing the Charge was given in Orkney upon 6 dayes which could not well be satisfied And therefore the Lords for the reasons foresaid did sustain the Horning Actor Hog and Thoirs alteri Falconer and Forbes In praesentia D. 223. Carfrae contra Telzifer eod die A Person being pursued as representing a Debitor upon that passive Title that he had behaved himself as Heir to the Defunct In sua far as being conveened at the instance of another Party he had proponed a peremptor Defence The Lords Found That the proponing of a Defence upon payment or such like was not such a Deed as could infer the Passive Title of Behaving unless it were adminicled with Intromission or otherwayes Nevoy Reporter Hamiltoun Clerk Vide 10 December 1674. D. 224. Chalmers contra Ferquharson and Gordon 22. January 1675. THE Lords Found That a Person being Pursued as Intrometter and having Alledged that before the intention of the cause she had obtained a Gift of her Husbands Escheat the said Defence is Relevant And that after Intromission there being a Donator confirmed before intention of the Cause or the Intrometter obtaining a Gift tho not declared there being no necessity to declare the same against her self that the same doth purge even Intromission before the Gift Some of the Lords were of another opinion upon that Ground that ipso momento that the parties intromet there is a Passive Title introduced against them which doth not arise upon the intention of the Cause but upon their own Act of behaving and Jus being semel quaesitum to Creditors cannot be taken from them except in the case of an Executor confirmed before the intention of the Cause against whom the Creditor may have Action And that there is a difference betwixt a Donator having declared and an Executor having confirmed In respect the Executor is lyable to Creditors but not a Donator and an Appearand Heir having become lyable by intrometting with Moveable Heirship and behaving as Heir his Intromission is not purged by a supervenient Gift seing his immixing is Aditio facto and there is eadem ratio as to Intrometters who are Executors a tort as the English Lawyers speak and wrongously And in effect by their Intromission adeunt passive and are lyable to Creditors Strathurd Reporter D. 225. Jean Maxuel contra Mr. William Maxuel eod die MR. William Maxuel Advocate being pursued at the instance of Jean Maxuel natural Daughter to Sprinkel for 5000 Merks Alledged due to her by Bond granted by the said Mr. William which she did refer to his Oath did give in a qualified Oath Declaring that he had granted a Bond to the Pursuer at the desire of her said Father but the same was never delivered and was so far from being effectual that by the express order of Sprinkel he was not to deliver the same to the Pursuer without his warrand and that he had given him order to destroy the said Bond in consideration that he was not satisfied with the Pursuers carriage and that he had left her a Legacy which the Defender had payed This quality was thought to be so intrinsick that his Declaration could not be divided so as to prove the granting of the Bond and not the Quality Specially seing the said Quality was adminiculate with Letters which the said Mr. William did produce which were written by Sprinkel to the same purpose Yet by plurality It was Found that his Oath proved the Lybel and Decreet was given against him Thereafter the said Mr. William obtained a Suspension upon that Reason that the Decreet was Extracted by favour of the Clerks not without precipitation after that he had applyed to the Lords and desired that the case might be reconsidered And that the Lords had Ordained the Decreet to be brought back and because the party refused they past a Suspension The case being debated in praesentia The Decreet in foro was obtruded and that it was just upon the matter seing
cross with certification pro confesso seing no person could be holden as confest who is not personally apprehended Mr. Thomas Hay Clerk D. 244. Duke of Monmouth contra Earl of Tweeddale eod die THere being a Transaction betwixt the Duke and Dutchess of Monmouth and the Earl of Tweeddale whereupon a Discharge was granted by the said Duke and Dutchess to the said Earl with consent of their Curators which was also superscribed by his Majesty taking burden for the Duke and Dutchess with an obligement that they should ratify after Majority The said Duke and his Lady pursued a Reduction of the said Discharge upon a reason of Minority and Lesion It was Alledged That all Parties haveing Interest were not called viz. The Officers of State for His Majesties Interest seing His Majesty was so much concerned that if any thing were evicted from the Defender His Majesty would be Lyable for the same The Lords Repelled the Defence Without prejudice to His Majesties Advocat to appear for his interest if he thought fit Stathurd Reporter Gibson Clerk D. 245. Irving contra Caruther 6. February 1675. THE Summonds being referred to the Defenders Oath who having declared that as to what was referred to his Oath he could not remember nor be positive It was debated amongst the Lords whether the Oath did prove or not Or if the Defender should be holden as Confest In respect he was to declare de facto proprio recenti and in such a case the pretence of non memini is neither excuseable nor relevant And so it was Found by the Lords tho some were of the Opinion that a person compearing and declareing upon Oath that to his knowledge he did not remember could not holden as confest seing he cannot be said to be contumacious and to want Memory is not a fault And after a party has declared it is only to be considered whether the Oath proves or not Mr. John Hay Clerk D. 246. Burnet contra McClellane eod die A Father being pursued as Behaving himself as Heir to his Son and Litiscontestation being made and Witnesses adduced the time of the Adviseing It was Alledged That the Father could not represent his Son as behaving because the Defunct had a Brother who was produced and at the Barr Whereto It was Answered That in hoc statu the Defence was not receivable and it could not be said to be noviter veniens seing the Father could not be ignorant that he had another Son The Lords in respect of the State of the Process would not receive the Defence tho verified instanter unless the Son would suscipere judicium and be content that the Process should proceed as against him which appears to be hard seing that which was to be proven was not only that the Defender intrometted but that he was appearand Heir and in casu notorio no probation was to be respected to the contrary and tho the Father could not but know that he had a Son yet he might be ignorant that his Son would be preferred to himself as to the Succession of his own Son and in damno vitando ignorantia Juris is excusable Mr. J. Hay Clerk D. 247. _____ contra Captain Martine and others 9. February 1675. A Ship being taken by a Caper and being found by a Decreet of the Admiral to be a Prize Thereafter upon a Decreet of the Lords reductive of that of the Admiral being found to be a free Ship the Stranger did urge payment against the Captain and the Owners of the value And It was Alledged That the Decreet of the Lords Ordaining Restitution was against them as correi debendi and not in solidum and that they are only lyable for their own parts Whereunto It was Answered That though it was found That the Captain had probable Reasons for bringing up the said Ship yet upon the matter the Stranger was wronged by the taking of his Ship and in casu delicti by spuilÈie or wrongous intromission or otherways Decreets against the Persons therein contained are construed to be in solidum and the Stranger cannot know what the respective Interests and Parts of the Owners are and ought not distrahi and to be put to Process against every one of them for declaring of their Parts The Lords Found That they were lyable in solidum Reserving their Debate and Relief amongst themselves as to their several Interests and Proportions Lord Forret Reporter Gibson Clerk D. 248. Burd contra Reid eod die THE Lords having formerly Found That the Cedents of Personal Bonds are lyable only to warrand debitorem esse but not esse locupletem It was pretended That there being a Question concerning Warrandice of a Right of Annualrent out of Land the same should be warranded no other way But The Lords Found That the Warrandice of Lands or of such real Rights upon or out of Land are absolute unless they be expresly limited and qualified by their Right Hamilton Clerk D. 249. Vetch contra the Creditors of James Ker and Peter Pallat. eod die SIR Robert Stewart in Ireland and his Son being Debitors by Bond in the Sum of 800. lib. starl to the deceast James Sanderson which Bond being conceived in the Form of English Bonds did not bear Annualrent The said James did assign the said Bond in Favours of Ronald Graham in trust and to his own behoof upon a Back-bond and thereafter did assign the said Back-bond in favours of James Ker and Robert Broun Merchants as to two Parts to the said Ker and the third part to Broun Sir George Maxuel of Pollock being Trustee and acting in name of the said Stewarts did grant a Bond to the said Ker and Broun making mention of the said Bond granted by the Stewarts and of the Assignation made by the said James Sanderson to the said Broun and Ker and that after Compt and Reckoning there was only resting of the said Sum 300. lib. sterl which the said Sir George in name of the said Stewarts is obliged to pay within three Moneths after that Stewarts Bond should be delivered to him with an Assignation or Discharge The said James Ker being deceased his Executors did intent Action against the said Sir George Maxuel for his part of the said Sum viz. 200. lib. In this Process William Vetoh did compear for his Interest and did alledge that the Sum in question due by Sir George Maxuel did belong to him having fallen under the Rebellion of the said James Sanderson and the Gift of his Escheat first Gifted to David Rodger fra whom the said William had right and thereafter to the said William himself and tho the said Bond granted by Sir George Maxuel was granted to the said Ker and Broun yet it was granted for the same Sums that were due by the said Stewarts to the said Sanderson as appears by the Bond granted by the said Sir George Maxuel so that the foresaid Sum due to Sanderson and the Bond for the same having as said is fallen
and belonged to the King it does still belong to him and his Donator Notwithstanding the said new Bond granted by Sir George Maxuel in place of the same seing Surrogatum sapit naturam c. It was Answered That the said Sanderson being Debitor to Ker and Broun as he might have payed his Debt after the Rebellion or the Creditors might have gotten satisfaction by poinding or Arrestment before the Rebels Escheat so he might have assigned the Debt due to him for their satisfaction Whereunto It was Answered for the said William Vetch That the Rebel cannot make assignation stante rebellione the Act of Parliament in anno 1592. K. Jam. 6. Parl. 12. cap. 145. Entituled Anent the Escheats of Rebels Bearing expresly That no Assignation shall be valid being made by a Rebel at the Horn in defraud of the Creditor if he be at the Horn for the same cause And therefore the said Assignation made by Sanderson when he was at the Horn in prejudice of Rodger Vetch his Cedent at whose instance he was at the Horn for the same Debt is void and what may be in the Case of actual payment or of Poinding or legal Diligence needs not be debated in this case seing the Rebel did neither make payment nor was the said Debt due by the Stewarts affected with Legal Diligence but a voluntar Assignation was made by the Rebel which being Null for the Reason foresaid and the Pursuers Right to the Sum in question being founded upon the same the Pursuer can have no Right to the foresaid Sum and the said Vetch having undoubted Right as said is ought to be preferred The Lords by their Interloquitor 10 Decenber last did find that an Assignation made by a Rebel to his Creditor albeit for a Debt preceeding the Rebellion and that the Assignation was granted before the Gift of the Rebels Escheat cannot prejudge the King or his Donator But that payment made by the Rebel or any other in his name upon his Precept or Assignation being before the Donators Gift is sufficient to liberate the Creditor from Repetition It was further Alledged for the Pursuer that the said Bond granted and due by the Stuarts was extinct and innovat In fua far as the said Sir George Maxuel had granted the said other Bond to the said Ker and Broun for the same Sum which was equivalent to payment Whereunto It was Answered That the said Bond granted by Sir George Maxuel was in effect but a Bond of Corroboration whereby the said Sir George became expromissor and upon the matter Surety for the said Sum So that the former Bond was not innovat nor extinct being neither Discharged nor Retired but being only to be Discharged or Assigned upon payment made by Sir George which implyes that it could not be innovat nor extinct seing it could not be Assigned if it had been extinct The Lords before Answer to that Point viz. If the said Transaction was equivalent to Payment declared they would take Sir George Maxuel's Oath ex officio at what time the said Bond granted by the Stuarts were delivered up to him and by whom and if any Discharges were granted to him of the said Bond. Sir George Maxuel having declared upon Oath That he had recovered the said Bond from Ronald Grahame and that he had not taken a Discharge of the said Bond either from him or from the said Ker and Broun This Day the Debate was again resumed at the Barr and amongst the Lords and these Arguments were urged by His Majesties Advocat viz. That by the Rebellion Jus quaeritur Domino Regi and that confiscation ex delicto is upon the matter a Legal Assignation and equivalent to an Assignation intimate And if there were two Assignations and the Debitor being out of the Country the first Assignation had been intimate at the Mercat Cross and Pear and Shoar of Leith and the Debitor having returned the second Assigney had intimate his by way of Instrument and thereupon the Debitor had bona fide made payment to him the first Assigney notwithstanding would be preferable And tho the Debitor would be free in respect of Payment bona fide yet the first Assigney might repeat the Debt from the second as indebite payed to him who had no Right so that the King and his Donator having Right to Stuarts Debt tho the Sum in question had been payed to Ker and Broun as it is not a paritate rationis the Donator might repeat the same as indebite payed to them seing by the said Interloquitor It is Found That an Assignation made by a Rebel albeit before the Gift cannot prejudge the King or his Donator for the reason foresaid It follows necessarly that the Assigney by vertue of such an Assignation has no Right to the Sum Assigned and consequently if the Debitor pay the said Sum bona fide tho he may be liberate yet the said payment cannot prejudge the King or his Donator but they may repeat the Sum belonging to them And if it be not payed but a Bond is renewed for the same as in this case the Donator ought to be preferred The Assignation being null as said is There can be no Innovation or Deed done by the Assigney who has no Right in prejudice of the King or his Donator seing a Debt cannot be innovat but by a person having Right to the same The Law does so far favour Legal Diligence done by the Creditors of Rebels that there are some Decisions in their favours preferring their Diligence done before the Gift be declared but voluntar Deeds done by Rebels in prejudice of His Majesty who has Jus quaesitum and of the Creditor who has denounced are altogether reprobate And the Law being clear and there being no Decision to the contrary in favours of Creditors in the case of payment upon such Assignations as are void in Law the Donator ought to be preferred Otherways a Door should be open to prejudge His Majesty of His Casuality and Creditors of their Diligence seing the Rebel may assign and upon such voluntary Assignations payment may be made And there should need no Application to the Exchequer for Gifts of Escheats if they may be so easily evacuate by such practices It appears by Sir George Maxuel's Oath and by his Bond that the said Debt was not extinct seing Sir George did act in the Affair as a Trustee and doer for the Stuarts and their Bonds were neither Discharged nor given back by the Assigneys who had Right to the same but were recovered by the said Sir George by his own means from Ronald Grahame The Lords did adhere to their former Interloquitor and did Find that Creditors getting payment from Rebels either by poinding or by Assignation before Declarator at the Donators instance doth secure the Creditor against the Donator And did also Find that in this case the first Bonds were extinct and that the same being delivered to Sir George Maxuel before Declarator at
the same to be transported to Scotland and in the interim War having arisen the Ship and Goods were taken by the Dutch and that he had done for the Pursuer as for himself and as other Merchants had done for themselves Which Oath being advised It was debated amongst the Lords whether the Defender should be Assoilied in respect of the Oath and qualification foresaid And It was Found that albeit the Defender might be excused upon the account foresaid for not going to Bourdeaux and fulfilling his Commission in terminis yet as to the of the parcel of Cards with the product of the Salmond and the embarqueing of the same for the Pursuers use for which he had no order he was to be considered as negotiorum gestor and upon his own hazard and could not prejudge the Pursuer by disposing of his Money unless he were able to say that gessit utiliter both consilio eventu specially seing he might have secured his Money in Factors hands or transmitted the same by Bills of Exchange without employing or far less hazarding the same without order Mr. Thomas Hay Clerk D. 260. 8. June 1675. THE Lords yesterday did Order that in regard of the great abuse in desiring and granting Advocations so frequently from Inferiour Courts to the great prejudice of the People and the retarding and delaying Justice that therefore the Ordinary upon the Bills may refuse to pass Advocations if he find cause but that he ought to report all Advocations before they be past to the whole Lords D. 261. Kyle contra Gray eod die THIS Day the Lords Found That Advocations for Sums of Money within 200 Merks could not be past upon any reason of Iniquity Castlehill Reporter Some of the Lords in the case foresaid were of Opinion that Advocations should not pass tho the Process had been for a Sum above 200 Merks Because Litiscontestation had been made in the Cause and after Litiscontestation there can be no Iniquity but by a Decreet which ought to be Suspended without Advocation D. 262. Grant contra Grant 10. June 1675. IN the Improbation of a Bond the Bond being produced and the Defender refusing to abide by the same Certification was craved against the said Bond because the Defender did not abide by the same And the Lords were clear that the Certification should be granted for not abiding by the said Bond tho it was produced but because the Witnesses in the Bond had been examined and there being only two Witnesses to the same they both declared that they were impuberes the one of 8. and the other of 9. Years of Age the time of the subscribing of the Bond and the Subscription was not like the Subscription now used by them and to their remembrance they were not Witnesses to the same but were not positive that they were not Witnesses The Lords in respect of their Declarations and that the Defender himself did in effect at least presumptively acknowledge the falsehood of the Bond in sua far as he did not abide by the same Had an Impression that the Bond was false and therefore they granted Certification for not abideing by the same and did leave to the Pursuer either to take out the Certification or to insist in improving of the Bond or for declaring the same Null as wanting Witnesses as he should think fit Seing without question tho the Witnesses did not fully improve it yet in respect of their Age the time of their pretended subscribing the same and by their Declaration they did not astruct the Truth of the same In which respect the Bond ought to be constructed and looked upon as wanting Witnesses and so Null Mr. Thomas Hay Clerk D. 263. Scot contra Murray 11. June 1675. A Suspension being raised of a Decreet Arrestment was used at the instance of the Creditor after the raising of the same and upon that pretence It was craved by the Suspender That the same might be loosed and upon the Report of the Bill the Lords having debated Whether the said Arrestment could be loosed being upon a Decreet though suspended The Lords Found That tho a Suspension be raised of a Decreet yet it does not cease to be a Decreet until it be taken away by a Decreet in favours of the Suspender and that tho a Suspension sists execution yet the Creditor may arrest seing the Arrestment is no Execution but a Diligence and Remedy to preserve the Debitors Estate to the effect that after discussing of the Suspension the Creditor may have execution against the same And therefore They Found the Arrestment could not be loosed In this case the Suspender had consigned the Principal Sum but not the Annualrents otherwayes if he had consigned all the Lords would have loosed the Arrestment seing the Consignation of the Money is sufficient Surety to the Creditor Mr. Thomas Hay Clerk D. 264. Auchenleck contra E. Monteith 15. June 1675. WIdow Auchenleck pursued the Earl of Monteith for the price of certain Ware for his Ladies Cloaths extending conform to an Accompt to the Sum of 177. lib. It was Alledged for the Earl That the said Ware was furnished after he had served Inhibition against his Lady that she should not contract Debt to his prejudice Whereunto It was Answered That the said Furnishing was necessary for the Ladies Cloaths and albeit after Inhibition she could not contract Debt to her Husbands prejudice yet the Earl being obliged to furnish her Cloaths and other Necessaries he will be lyable for what is furnished to her necessarily The Lords upon the Report of the Debate foresaid having considered the Inhibition and that the execution of the same was not registrate were of the Opinion that the said Inhibition was Null But because it was not questioned by the Defender they Ordained that the Reporter should hear what Answer the Defenders Procurators could make as to the said Nullity It was thought hard by some of the Lords That a Merchant after Inhibition at the Husbands Instance furnishing bona fide to the Wife should be frustrate upon the pretence of an Inhibition unless either the said Inhibition had been intimate to the Merchant or it were notourly known that the Wife was Inhibited seing such Inhibitions are granted without any Ground either of Write as Bond or Contract or the dependance of a Process but only upon a Bill and Desire of the Husband sine causae cognitione And it were hard That Merchants when Persons and Ladies of any Quality come to their Shops for buying their Ware should go to the Registers and try whether they be inhibite but these Points were not decided D. 265. Katharine McMillan Lady Logy contra Meldrums 16. June 1675. A Disposition being granted by a Husband to his Wife of Moveables and she in an Improbation of the same being urged to abide thereat and offering to abide at the same as a Write truly delivered to her by her Husband The Lords Found That she ought to abide at the
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâ—on that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
gratuitously Disponed his Estate In praesentia D. 334. Gibson contra Fife 12. February 1676. A Woman having lent 100 Merks upon a Blank Bond and the same being lost The Debitor was pursued for payment of the said Sum and did confess that he had truly borrowed the Money and granted the Bond Blank and he was willing to pay the same being secured against any pursute at the instance of any person who might have found the said Bond and filled up his own name therein The Lords thought the case to be of great difficulty and import as to the preparative that practice of granting Blank Bonds having become too frequent And resolved in this case to take all possible Tryal by the Debitors Oath and otherwayes of the date and Writers Name and the Witnesses in the said Bond And thereafter to ordain the Debitor to pay upon surety that the Pursuer should relieve him of any Bond that should be found of that date and Sum and writen and Subscribed by the Writer and Witnesses that should be found to have been in the said Bond. Gibson Clerk D. 335. Anderson contra Lowes 15. February 1676. THE Lords in the case abovementioned Anderson contra Lowes 27. November 1675. Found the Tenor of the Write thereinspecified proven by the Adminicles thereinmentioned In praesentia D. 336. Marshal contra Forrest and her Husband eod die IN a pursute at the instance of a Minor against his Tutrix The Pursuer having referred to the Tutrix Oath that she had intrometted with diverse particulars belonging to him The Husband of the Tutrix Alledged that she could not declare in his prejudice It was Replyed That the Pursuer having an Action and Jus quaesitum competent to him against his Tutrix he could not be in worse case as to modum probandi by the Tutrix her superinduceing a Husband And that the Intromission of a Relict after her Husbands decease being such as to Money Bonds and many other particulars as could not be known to any person but to her self nor proven but by her own Oath It were hard that the Minor should be prejudged of his Probation by her own Deed And the Husband is not in the case where a Debt is only to be constitute by the Wifes Oath seing the Ground of the Debt is constitute by Write viz. By the Nomination or Letter or Tutory And when there is a pursute against any person that Person cannot by an Assignation prejudge his Creditor of his Probation by Oath and the Minor is more priviledged seing by the Common Law Minors have a tacite hypotheck of their Tutors Estate and by our Law they ought to be favoured at least so far as it should not be in the power of the Tutrix to ruine them by convoleing ad secundas nuptias ante redditas rationes The Lords thought the case considerable And Ordained the Tutrix to declare Reserving to themselves to consider what her Declaration should import Forret Reporter Gibson Clerk D. 337. E. of Dumfermling contra the Earl of Callender 16 February 1676. THE Earl of Dumfermling having Right by Assignation to the Obligements contained in the Contract of Marriage betwixt the deceast Earl of Callender and his Grand-mother in swa far as the same is in favours of the said Lady pursued the said Earl of Callender for Implement of the said Obligements and the Lord Almond now Earl of Callender as having gotten a Right to the said Earl of Callender's Estate with the burden of his Debts and the said Earl in the interim having deceased did insist against this Earl of Callender For whom It was Alledged That the Process ought to be transferred against some representing the said Earl of Callender as Heir of Line or otherways And tho the Pursuers Procurators declared they insisted only against Callender for a Declarator that the Estate disponed to him should be affected with the foresaid Obligement It was urged for Callender That the said Earl's Heirs ought to be called Seing the Declarator against him being a singular Successor that his Lands should be affected was only a subsidiarie Conclusion and could not be sustained before the Debt was constitute and the Debt could not be constitute unless the pretended Debitor or some representing him were called The Lords notwithstanding Found Process and that there were no necessity of calling or transferring against the Heirs of the Debitor Actor Sinclar Bernie and others alteri Lockheart Monro Clerk In Praesentia D. 338. Doctor Borthuick contra the Earl of Crawfurd eod die THE Earl of Crauford having borrowed 8000 merks from the Mother and Grand-mother and two of their Children for themselves and in name and behalf of their said Children he is obliged by his Bond to infeft the said Mother and Grand-mother in Liferent and the said Children in Fie in an Annualrent out of certain Lands but by a mistake the Precept of Seasin contained in the Bond is in favours only of the Mother and Grand-mother and for infefting them as Fiars of the said Annualrent and accordingly they are infeft And yet thereafter the said Mother and Grand-mother acknowledging that the said Infeftment was so taken upon mistake did by a Disposition bearing the Narrative foresaid dispone the Fee in favours of the said Children and there was a Pursute intented at their instance against the said Earl of Craufurd for poinding of the Ground Wherein It was Alledged That the Mother and Grand-mother being only Lifrenters could not resign the Fee which they had not and if the Pursuers made use of their Right from them the Defenders ought to be assoilÈied because the Mother and Grand-mother by a Transaction betwixt the said Earl of Crawfurd and them had accepted the time of the Englishes a parcel of Lands in satisfaction of the said Debt The Lords Found notwithstanding of the said Alledgance that the Pursuers ought to have process for poinding the Ground In respect the Mother and Grand-mother had de facto the Fie in their person upon the said Precept and Seasin And the same being given indebite as said is they might have been compelled to denude themselves thereof and therefore might voluntarly and accordingly did denude themselves thereof and the said Transaction could not prejudge them seing they derived their Right from the said Persons qualificate in respect of their Interest and Error foresaid and they might have been compelled to give the same and the Earl of Crawfurd was not in bona fide to contract with them Seing by the Bond granted by himself they were only Fiars and the other but Liferenters Actor Lockhart and Beaton alteri Cuningham and Suinton Clerk in praesentia D. 339. Doctor Hay contra Alexander 17. Febr. 1676. DOctor Hay his Case 28 January 1675. supra resumed and taken to consideration this day And tho some of the Lords considered that it was hard to canvel Certifications in Pursutes of Improbation after a long Dependence and diverse Terms given to produce and delays of Extracting
said Sums it should belong to the Executors as Moveable Seing the Defunct had exprest his Intention that it should be such by the taking the Bond in the form and conception of a Moveable Bond. Cuninghame and Kincaid for Wauch alteri Lockheart and MckenÈie Mr. Thomas Hay Clerk in praesentia D. 343. Ogilvie contra Buckie 22. February 1676. IMprobation being proponed against a Discharge after the same had been questioned as Null because it wanted the Writers Name at least he was not designed The Lords Found The said Write Null and not probative unless the Pursuer should condescend upon a Writer Living at least if he were Dead should produce Writes writen or subscribed by him to the effect the Pursuers may thereupon have the means of indirect probation entier Actor MckenÈie alter Thoirs D. 344. Aerskine contra Rynolds eod die THE Lords sustained a Declarator at the Instance of a Creditor to hear and see it Found That certain Sums provided by a Father to his Children after the contracting of the Debt should be lyable and subject to Execution for their Debt and that they should be lyable themselves in quantum lucrati tho there was not a Reduction intented of the said Rights upon the Act of Parliament 1621. which the Lords were moved to do not only because they thought that the said Declarator is a Reduction upon the matter but the rather that the Summonds were offered to be proven by the Defenders own Oaths and in effect as to the most of the Sums they were not a Subject of Reduction seing the Debts were not all assigned to the Children but the Bonds being blank in the Creditors Name the Father had filled them up in the Name of the Children and as to such as were assigned for the most part they were renewed in the Name of the Children the former Bonds being given back with Assignations to the same Newbyth Reporter D. 345. Hilton contra L. Chynes 24. February 1676. THE Lady Cheynes being infeft in an Annualrent upon a Right granted by her Husband Her Seasin was questioned upon these Grounds 1. That it was Null in sua far as the Baillie and the Actorney in the Seasin were one Person who could not both give and take the Seasin And 2. The Provision was during Marriage and after the Creditor that did compeat his Debt and tho it could be sustained where there was no Contract of Marriage for a competent Provision yet it could not be sustained for the whole Annualrent being exorbitant her Husbands Estate and Debt being considered The Lords In respect it did appear evidently that it was a mistake of the Notar that the Seasin did bear the same Person to be both Baillie and Actorney in the Clause of Tradition And seing by the first part of the Seasin it was clear that there was a distinct Actorney who did present the Seasin to the Baillie Did therefore encline to sustain the Seasin but before Answer to that Point they ordained the Parties to be heard upon the said other Alledgance and the Relict to condescend upon her Tocher and the Rent of the Estate and the Creditor upon the Burdens Newbyth Reporter D. 346. Johnston contra Cullen eod die A Tack being granted by a Husband to another Person to the behoof of his Wife to begin at the first Term after the Husbands decease was not sustained against a singular Successor because the said Tack was but a Personal Right not being cled with Possession and the entry was conferred in tempus indebitum to begin after the Husband was denuded Glendoick Reporter Monro Clerk D. 347. Johnston contra Orchardtoun eod die IN a Pursute upon a Bond of Corroboration It was Alledged That the Principal Bond ought to be produced which was repelled in respect the maxim non creditur referenti nisi constet de relato holds only in the Case where there is only a naked Relation to a Write and not when the Write that relates thereto doth proceed to an Obligement thereupon and it is not only Relative but Dispositive Glendoick Reporter Robert Hamilton Clerk D. 348. Burnet contra Swan eod die A Seasin within Burgh being questioned because it was not found in the Books was sustained In respect of the Act of Parliament excepting such Seasins from necessity of Registration it being to be presumed that the Clerks do not faill to registrate the same and if they do not book them it ought to be imputed to them and not to the Party Sir David Falconer for the Seasin Alteri Seaton Hay Clerk In praesentia D. 349. _____ contra _____ eod die IN a Pursute against a Minor It was Alledged Quod non tenetur placitare because Minor Whereupon there did arise two Questions viz. 1. Whether the said exception being a Dilator ought to be verified instanter As to which It was Found by the Lords That Minority being in Fact could not be verified instanter 2. It being replyed That the Defender was Major which was offered to be proven and a conjunct Probation being desired by the Defender It was nevertheless Found by the Lords That the alledgance of Minority being eleided by the said Reply of Majority which only was admitted the Pursuer ought to be allowed to prove his Reply without Conjunct Probation to the contrary Sir David Falconer Actor alteri _____ Hamilton Clerk In praesentia D. 350. Rig contra Rig. 6 June 1676. THE Lords Found as they had done formerly in another Case that where a person of a near Relation stayes for any considerable time in Family with another as in the Case in question a Brother with a Sister and both are Majores and of that age that they may agree if it be so intended by either that the one should be considered and have a Fee and satisfaction as a Servant to his Sister or that the Sister should have satisfaction for the Aliment and Entertainment of her Brother if they make no such Transaction that neither the Sister can claim Aliment nor the Brother a Fee upon pretence that he did serve and did good Offices to his Sister and that it ought to be thought and presumed that he did the same upon account of his Relation for his Entertainment and that she did entertain him in contemplation of the said Relation and that he was useful Hay Clerk D. 351. Pittarro contra the Tennents of Redmyre 7. June 1676. THE Abbot of Arbroth by an Ancient Charter having fewed the Miln of Conveth in these Terms cum pertinen cum multuris totius parochiae de Conveth The Feuar of the said Miln in the Year 1597. did obtain a Decreet of the Lords of Session against some of the Heretors of the said Parish in foro as to some of the Defenders but in absence as to others and in special as to the Heretor of Redmyre being called And now _____ Carnegie Younger of Pittaro having pursued for abstracted Multures the Heretors and Tennents of Redmyre and having founded
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour
he was in the said process It were inconsistent that his Tennent should have the benefite of a Possessory Judgement and not himself In praesentia D. 394. Rutherford contra Weddel 5. December 1676. THE Lords In a Suspension at the instance of a Bankrupt who was Prisoner did allow him to come out without the habite Because It was represented that the Debt was for the most part not contracted by himself but by his Father Albeit some of the Lords were of the Opinion that the Act of Sederunt bearing no distinction and being made upon good consideration and conform to the practice of all other Nations That Bankrupts should be known by a habite to be persons that deserved no Trust and that others may be affrighted from contracting or under-going Debts which they are not able to pay And that the pretence foresaid was frivolous it not being presumable that a person would be Heir and become Lyable to Debts that he had not Contracted unless there were Effects and sufficiency of Estate to pay the same And if such pretences should be allowed the Law would be altogether elusory Gosford Reporter Mr. Thomas Hay Clerk D. 395. The Town of Glasgow contra Greenock 7. December 1676. THE Town of Glasgow having intented a Declarator against the Laird of Greenock containing these Conclusions viz. That it should not be lawful to Greenock or his Burgh of Barony to import any Goods from Abroad which by the late Regulation and Act of Parliament concerning the priviledges of Burghs Royal being the 5. Act of the 3d. Session of his Majesties Second Parliament belongeth to the Royal Burghs and are to be imported by them privative and in special Wine Brandy and Salt 2. That if they should be found to contraveen the said Act of Parliament that the unfree Goods deprehended should not only be Escheat but their whole Goods conform to former Laws and Acts of Parliament against unfree Men. It was Alledged for the Defenders That at least they ought to be in the same case as Strangers and Unfree-men of Forreign Nations who may import without limitation making Offer to the Royal Burghs and if they do not buy the same from them being obliged to Sell them in whole sale and at the price to be limited and appointed by the Burgh where Offer is made and that the Burghs of Barony had been in use of importing as Strangers the same being qualified as said is And the said Custom was not contrary to Law but conform to diverse Acts of Parliament and in special the 100 Act of K. Ja. 5th his _____ Parliament bearing that if any Free-man or other Scots-man dwelling within this Realm should bring home Wines Salt or Timber That the Magistrates of Burghs where the same is entered should set a price upon the same which imports that Unfree-men may import the same The Lords Found That by the said late Act of Parliament The matter of Trade is so regulated That as the Burghs of Barony their priviledges to import Goods and Commodities that they could not import before are settled upon them and on the other part Royal Burghs are secured from the encroachment of Burghs of Barony So that they cannot import but the particulars allowed to them by the said Act Therefore that upon no pretence the Burghs of Barony and Unfree-Men can import any other Goods and that they are not to have the Liberty that Strangers have Seing Strangers are allowed the Liberty of Trade and Commerce being qualified as said is And if the same were denyed there would be no Trade betwixt our Merchants and them Whereas the Liberty of Trade and to import Forreign Commodities is only lodged and settled upon Royal Burrows upon good Considerations and intuitu of the same they are Lyable to a 6th part of Taxations and other publick Burdens 2. It was Found That albeit in the late Act of Parliament there be not mention of Salt as one of the Commodities allowed to the Royal Burrows and contained in the specification that the same does only belong to the Royal Burrows Seing they are founded as to all Commodities not expresly allowed by the said Act to Burghs of Barony and Regality in Jure And the Burghs of Barony are excluded by the said Act as to all others except these allowed to them expresly by the said Act and come under that general viz. Such as are necessary for Tillage or Building or for the use of their Manufacture And whereas it was pretended by the Defenders that Salt is necessary for the curing of their Fishes The Lords Found That Manufacture intended by the Acts of Parliament is only to be understood of Works erected by Companies or others for making of Cloath or such like about which many poor People are Employed and Entertained And tho there be skill in cureing Herring they are not a Manufacture but a Native Commodity without any alteration of the form and only qualified by the cureing of the same And that upon that pretence the Defenders ought not to be allowed to import Salt But was Recommended to some of the Lords being also upon the Council to move that a course might be taken for Regulateing the price of Salt that it be not Arbitrary to the Royal Burrowes to sell the same at such Rates as the Burghs of Barony cannot without prejudice buy the same So that they may be forced to desist from making or exporting Herring The Lords Found That the said Act having defined the pain to be the Escheat of the Goods deprehended And not the Escheat of the Contraveeners whole Goods And that as to Goods not deprehended the pain ought not to be greater And that these who import unlawful Goods contrare to the Act tho they be not deprehended may be pursued for the value of the same and no farder Some of the Lords were of another Opinion as to this Point and thought that seing the late Act of Parliament doth mention only the case of unlawful Goods deprehended and doth regulate the former Practice as to the attaching and affecting of the same and it is inconsistent that both the Goods deprehended should be escheat and likeways the Contraveeners other Goods should be escheat That therefore the former Laws are still in vigour Actor Lockheart c. alteri Cuningham In praesentia D. 396. Marshal contra Holmes 12 December 1676. AN Advocation being produced after the Judge had decerned but before he had cleared and dictate the minute of the Decreet which he did upon the Bench immediatly after production of the Advocation The Lords Found the Decreet Null as being spreto mandato But in respect of the Circumstances and that the Judge had decerned before as said is they turned it in a Lybel Thesaurer-deput Reporter Gibson Clerk D. 397. Durham contra Durham eod die SIR Alexander Durham having upon Death-bed given Bond to the Lord Clermount for 20000. merks and at the same time having ordained his Nevoy Mr. Francis Durham his
are made or ex post facto become valid and unquestionable ex capite Lecti as appears by the Law of the Majesty concerning Rights on Death-bed D. 401. Earl of Argyle contra The Lord Mcdonald 14. December 1676. THE Earl of Argyle having pursued the Lord Mcdonald for Reduction of a Feu holden of the Pursuer ob non solutum Canonem It was Alledged That the Defender had a disposition of the Superiority from Lochzeal before my Lord Argyl's Right by a Disposition likewayes from him And tho my Lord Argyle having compleated his Right before the Pursuer by an Infeftment upon the same will have Right to the Feu-duties after his Infeftment yet the Defender had Right to the bygones by the foresaid Disposition made to him which being of the Lands and Superiority and made to the Vassal himself was upon the matter an Assignation to the Feu-duties and a Discharge And farder That as to the Feu-duties after my Lord Argyl's Right he was in bona fide not to pay the same having the foresaid Disposition as said is And my Lord Argyle having done nothing upon his Right to make Interruption And therefore the Summonds ought not to be sustained upon Cessation and not payment before Intimation of the Pursuers Right to the Defender Both which Alledgances the Lords Found Relevant In the same Case The Lord Mcdonald having proponed an Alledgance viz. That my Lord Argyle was obliged by Bond to warrand Lochzeal at the Hands of the Defender and of any pursute competent upon the said Disposition made to the Defender quem de evictione tenet Actio agentem repellit Exceptio And the same being Found Relevant the Defender giving his Oath of Calumny thereupon The Lords In respect the Defender being in Town had refused at least had not come to give his Oath of Calumny had decerned But the Lord Mcdonald having intented Reduction of that Decreet upon offer to give his Oath of Calumny upon pretence that it was towards the end of the Session when his Oath of Calumny was craved and that upon some occasions he had been forced to go home It was Alledged for the Earl of Argyle that upon Mcdonalds Refusal to give his Oath of Calumny it was in construction of Law a Calumnious Alledgance and could not now be received And the greatest favour could be shown to him was that he should be heard to verify the same instanter The Lords did decern superseding Extracting until a day in January that in the mean time the Defender might verify the said Alledgance having taken his Oath of Calumny that the Write was not in his own Hand Actores Lockheart and Bernie alteri Cuninghame and Thoirs In praesentia D. 402. Litlejohn contra Mitchel eod die THE Lords Found That Bonds granted on Death-bed albeit they are Legacies as to that effect that they do affect only the Deads part yet they are preferable to other Legacies left in the ordinary wayes of Legacies and that the Defunct was in legitima potestate as to the affecting of his part and granting of Bonds to that effect Justice Clerk Reporter Gibson Clerk D. 403. _____ contra _____ eod die THO in Improbations the user of Writes questioned as false ought to compear to abide by the same yet a Commission was granted to take the Defenders Declaration that he did abide by In respect he was a person of great Age. D. 404. Wallace contra Murray eod die THERE being a pursute at the instance of a Creditor against the Representatives of an Intrometter with the Debitors Goods The Lords Found That the Passive Title of Intrometter could not be sustained after the Intrometters decease to make him Lyable as universal Intrometter And yet sustained the same in quantum he was locupletatus the Pursuer for the Defenders farder surety confirming before the Extracting of the Sentence a Testament as Executor Creditor to his Debitor Thesaurer Depute Reporter Gibson Clerk D. 405. Grant of Rosollis contra L. Bamff 19. Decem. 1676. THE Lord Bamff having acquired the Lands of Craigstoun from John Lyon did give three Bonds to the said John Lyon Blank in the Creditors Name containing each of them 5000 Merks And at the desire of the said John did give a Letter with the said Bonds with a Blank direction bearing that the said John Lyon having Disponed to him the Lands of Craigstoun for which he had become Debitor by certain Blank Bonds containing 5000 Merks And therefore desireing that no person might scruple to take the said Bonds For it should be no dissatisfaction to him that they took them without acquainting him but that it should be holden as if they had received the Bonds in the beginning and had their Names filled up therein at that time The said John Lyon did fill up the Name of John Grant of Rosollis in the said Bonds and delivered the said Letter to him putting a direction upon the same for the said John Grant Whereupon the Lord Bamff being charged did Suspend upon that reason that he ought to have Retention because the said Bonds were granted for the price of the said Lands and in contemplation of a valid surety free of all Incumberances and the surety not being valid In respect the Lands were affected with Hornings Inhibitions and Comprysings equivalent to the Sums contained in the Bonds he had in Law Condiction as being ob causam non secutam There was also compearance for the Donator of the said John Lyons Escheat who did produce his Gift and Decreet of general Declarator and Alledged that he ought to be preferred because he had Right to the Sums due by the said Blank-bonds In respect the Chargers Name was filled up in cursu Rebellionis And the said Blanks being ab initio the Rebells while they were Blank they fell under his Escheat and he could not fill up or deliver the same in prejudice of the Fisk. The Lords Found That the pretence foresaid of Condictio causa data tho competent against the said John Lyon himself if the Bonds had been filled up in his own Name would not be competent against the Charger if his Name had been filled up ab initio Because if the Suspender had been content to give Bond to him It would have been delegatio in which case the Exceptions competent against delegantem would not have been competent against the Person in whose favours the Delegation was made And that the Charger was upon the matter in the same case seing the Suspender by his Letter was content that the Bonds should be holden as if they had been filled up ab initio The Lords also Found That the said Bonds being Blank tho they continued Blank were the said John Lyons proper Bonds and if he had deceased before the filling up of the same they would have fallen under his Executry and consequently he being Rebel and his Escheat gifted and declared they fell under his Escheat And His Majesty and the Donator could not be
respect there can be no Executions without giving of Copies either personally or at their dwelling house And when the Leidges are inhibite at the Mercat-cross in general so that a Copy cannot be given to every person it ought to be left at the Mercat-cross in subsidium But because it was informed that many Executions did not bear Copies to be left at the Mercat-cross The Lords did forbear to give Answer as to the Inhibition in question until the stile and custom should be tryed D. 414. Dick of Grange contra Sir Andrew Dick. 22. December 1676. SIR Andrew Dick having obtained upon a Petition to His Majesty a Warrand to the Exchequer to pay to his Wife and Children 130 lib. sterl Yearly The said Annuity being Arrested at the instance of _____ Dick of Grange It was Alledged in a Process to make forthcoming that being Alimentary it could not be Arrested Whereunto it was Replyed that the said Sum was not Alimentary so that it could not be affected with Sir Andrew his Debts In respect whatsomever belongeth to a Debitor either on his own Right or Jure Mariti is Lyable to his Debts and it is not in the Power of a Debitor to make any thing belong unto him Alimentary but there must be an express constitution to that effect which is only in that case where the King or any other person doth give any thing and doth qualify their own Gift with that express provision that it should be only for the Aliment of the person gratified that it should not be affected with any Debt or Execution for the same whereas His Majesties Grant was only in the Terms foresaid and was procured from His Majesty not upon any special consideration or respect to Sir Andrew's Lady but upon a Representation made by Sir Andrew that he had a former Wadset from the Earl of Mortoun of his Estate in Orknay and the same being taken from him by a Reduction at the instance of His Majestie of the Earl of Mortoun's Right of Orkney he and his Family would be in a sad condition And therefore the said Annuity being granted by His Majesty in lieu and intuitu of the said former Right surrogatum sapit naturam surrogati It was farder Replyed That albeit the said Annuity were Alimentary the Pursuers Debt ought to affect the same being likewayes Alimentary In respect it was for Money furnished for the Aliment and Entertainment of the said Sir Andrew and his Lady privilegiatus non utitur privilegio contra privilegiatum The Lords Found That the said Annuity was Alimentary and could not be Arrested and the Aliment being de die in diem the Debt due to the Pursuer could not affect the same unless it had been for Aliment while the Annuity in question was in cursu Forret Reporter Mr. Thomas Hay Clerk D. 415. E. Argyle contra The Laird of Mâ—naughtoun 3. January 1677. IN a pursute at the instance of the Earl of Argyle against the Laird of Mâ—nauchtoun who held some Lands of him Ward for the single avail of his Marriage It was Alledged for the Defender 1. That the Defender had Marryed the time of the Usurpation at which time the Casualities of Ward and Marriage were taken away by an Act and Proclamation of the Usurpers whereby the Defender was secured and was in bona fide to Marry without requireing the Superiors Consent 2. De facto the Superior had consented to his Marriage In swa far as the Defender having given notice to him by a Letter the Marquess of Argyle being then at London that he was to Marry with a Gentle-Woman who is now his Wife the Marquess did return a Letter which was produced showing that he could not but approve his matching with the said Gentle-Woman being the Laird of Ardkindles Daughter and if they should proceed to the Marriage that he wished them well Whereunto It was Replyed That the Usurpers by their Act could not prejudge the Pursuer or any other Superior but that they might claim the Obventions and Casualities that did fall unto them by the nature of their Vassals Right as it was found in the case of Sir George Kinaâ—rd and the Master of Gray that Lands holden in Ward being Disponed in the time of the Usurpation without the Superiors consent did recognise notwithstanding of the said Act And as to the said Consent It was Replyed that the said Letter was but a Civil Complement without any mention of the Marquess his Interest as Superior and without an express Licence to Marry and Discharging any Interest or pretence that he had to the Defenders Marriage Upon Debate at the Bar and among the Lords Some were of the Opinion that there being no Contempt that could be alledged of the Superior and the Vassal having so much reason to think that he needed not his Consent In respect the said Act was a Law de facto and for the time the whole Country being forced to submit to the Usurpers and to acquiesce to their Orders That Communis error facit Jus and quaevis causa excusat as to Casualities arising upon feudal Delinquency or Contempt And the Superiors Interest that was intended of the Law was not that he should have a Sum of Money but that his Vassal should not Marry without his Consent and match with Families either disaffected or in which the Superior could not have confidence and the avail of Marriage is penal in case the Vassal should either Marry without the Superiors consent or should refuse to Marry a person profered by the Superior to be his Wife Upon the foresaid Considerations they were of Opinion that the Defence was relevant and that there was a great difference betwixt the case of Recognition and Marriage in regard the reason of the Decision in the case foresaid was that the Vassal did upon the matter contemn the Superior after the Kings Restitution seing he did not apply for a Confirmation Whereas the Vassal being once married it were to no purpose to desire the Superiors Consent On the other part some of the Lords argued that the single Avail is not penal but only the double seing the Vassal attaining to the age of marriage if he should die unmaryed yet the single avail would be due Whereunto It was Answered That poena is in Law when a Person is lyable to pay a Sum either for doing or not doing a Deed and as the Vassal is lyable to the double Avail for refuseing the Person offered by the Superior so he is lyable to the single for not marrying and tho matrimonia are libera so that a Person may marry or not as he pleases yet causative many things are allowed which cannot be directly And it being the design of the Feudal Law and Superiors in giving out their Lands to have still Vassals to serve them and their Family the appearand Heir is obliged by the nature of his Holding to marry or in poenam to pay the avail and if the Vassal
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage The Lords Found The said Provision copulative and that the Tocher should not return albeit the Father in Law had Heirs Male within the foresaid time Seing the other Member of the said condition did not exist In respect albeit his Daughter deceased within the said time yet she had a Child of the Marriage that survived Gosford Reporter Mr. John Hay Clerk D. 424. Jaffray contra Laird of Wamfray 12. Jan. 1677. A Sum due be a Bond bearing an Obligement to Infeft and Requisition was Found to be Moveable after Requisition and to fall under Escheat notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable but remains still Heretable quoad fiscum In respect Bonds of the nature foresaid became Moveable by Requisition even before the said Act of Parliament And the Fisk since by the foresaid Act of Parliament is not put in better case is not in worse Glendoich Reporter Mr. John Hay Clerk D. 425. Inter eosdem eod die IN the same case It was Found That an Instrument of Requisition was Null because it did not bear that the Procuratory was produced And an Instrument being produced extended under the Notars Hand and being quarrelled upon the Ground foresaid The Lords did not allow the Notar to give out an other Instrument bearing the Procuratory to be produced nor did admit probation by Witnesses that the Procuratory was produced Seing such Solemnities are not presumed and cannot be proven by Witnesses but by valide and formal Instruments And a Notar having given out an Instrument that is defective cannot thereafter give an other to supply the defect Otherways the question being betwixt the Creditors who had done lawful Diligence and a Donator it should be in the power of a Notar to prefer and gratify either party as he should be prevailed with either to give out or not to give another Instrument D. 426. Inglis contra Lawrie eod die SOme of the Lords were of the Opinion that a Husband may give validly during Marriage to his Wife a Provision or Jointure where there is no Contract of Marriage But that the Wife could not give to the Husband tho there were not a Contract of Marriage and that she might revock any such Donation which appears to be hard and unequal Actor Colt alteri Dalrymple Mr. Thomas Hay Clerk But this Point was not decided D. 427. Fordel contra Caribber 16. January 1677. IN a Reduction at the instance of the Laird of Fordel against Monteeth of Caribber of a Disposition granted by Monteeth of Randyfurd to Caribber upon that Reason That the said Disposition was not delivered but was lying by the Defunct in his Charter Chest and blank in the Name and Date and that the Defender intrometted with the same unwarrantably and filled up his Name The Lords Ordained certain Persons who were going to France to be examined before Debate reserving to themselves to consider what their Depositions should work Tho it may appear hard that a Write should be taken away by Witnesses yet the Reason being relevant and in Fact and resolving in dole and Fraud it may be proven by Witnesses Mr. John Hay Clerk D. 428. Stewart of Ardvorlich contra Riddoch eod die DAVID Riddoch by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne did dispone to the said Alexander his Estate and thereafter did dispone the same to his second Son David Riddoch for payment and with the burden of all his Debts who did thereafter dispone the same to Stewart of Ardvorlich for a just price The said Stewart of Ardvorlich pursued a Reduction of the Disposition contained in the said Alexander his Contract of Marriage upon that Reason That the said Contract of Marriage was not delivered to the said Alexander at the least there being but only one double subscribed the same was given back to David Riddoch the Father and was lying by him the time of his decease And it was evident that it was never intended that any other use should be made of the said Contract but only in order to get a Marriage to the said Alexander as being provided to the said Estate in swa far as the said Disposition in favours of the said Alexander was without the burden of the Disponers Debts which were very great and did not so much as reserve his Liferent Whereunto It was Answered That the Contract was a mutual Evident subscribed by both Parties and that Marriage had followed upon the same and therefore it could not be taken away upon the pretence of not delivery The Lords Found That tho the Contract had been beside the Father the time of his decease it was not to be considered as instrumentum penes debitorem being a mutual Evident But thereafter It was Replyed That the Pursuer offered to prove that not only the said Contract was lying by the Disponer the time of his decease but an Assignation blank of the said Contract which being in the Disponers Hands was in effect a retrocession or Discharge of the Disposition contained in the Contract Which Reply the Lords found Relevant In praesentia This Reply was Found also probable prout de jure D. 429. Cuningham contra Halyburton eod die THE Lords Found That a Tacksman of Lands within Burgh may be removed if he be behind in payment of his Duty unless he find Caution as to the future in the same manner as Tacksmen of Land in the Countrey Forret Reporter Gibson Clerk D. 430. _____ contra _____ eod die THE Lords Found That a Burgess of the Town tho he be not Incola if he trade may be stented for payment of his Majesties Taxation D. 431. Earl of Glencairn contra Brisbain eod die THE Lords Found In the Case abovementioned Glencairn contra Brisbaine That the true Value of the Lands should be proven to the effect it may be known whether the Price be adequate or not And albeit the Lands had not been laboured by Tennents being still in the Heretors hands the Value might and ought to be proven by the soweing and increase and the quantity of the Land and what Lands in that part of the like quantity and quality may be set for And it was not enough that now the Earl of Glencairn offered 2000 merks more in respect the Lands might have been improven or the said offer might be made upon Picque or Emulation Hatton Reporter Mr. Thomas Hay Clerk In this Case the Lords allowed a conjunct Probation D. 432. Caribber contra Fordel 17. January 1677. THIS Day again in the Case abovementioned Caribber contra Fordel The Lords did Find upon a Bill given in by Caribber That albeit Write cannot be taken away but by Write directly and that a Disposition could not be taken away but by a Renounciation or some other Writt where there is no question as to the Validity and Formality of the same
Yet it may be taken away by a Reduction Ex capite Metus Doli and minoris aetatis and Lesion And that in such pursutes the Reasons being in Fact and Lybelled either upon Force or Circumvention and Fraud are probable by witnesses and that the Reduction at Fordels instance upon that Reason viz. That the Disposition in question was found among the Defuncts papers the time of his Decease and was intrometted with and filled up by Caribber is ex eodem capite Doli Mr. John Hay Clerk D. 433. _____ contra _____ eod die AN Edict of Executrie being Advocate from the Commissars a Bill was given in desiring that the Advocation might be summarily discust seing both nearest of Kin Creditors and the Fisk were concerned that the Testament should be confirmed and execute which Desire the Lords thought could not be granted in respect of the Act of Regulation but it was thought a great Escape and Inadvertency that such Advocations should be past seing the Lords could not confirm Testaments and if any Partie should be prejudged by any Act of the Commissars it may be reduced upon the head of Iniquity And the Lords thought it was fit that a new Edict should be raised and if an Advocation should be sought the Reason should be discust upon the Bill D. 434. Earl Argyle contra Mcnaughtoun 23. Jan. 1677. IN the Case abovementioned Earl of Argyle contra Mcnaughtoun It was Found That Mcnaughtoun having acquainted the deceast Marquess of Argyle that he was to Marry with his Lady and that the Marquess having returned an Answer by his Letter of the Tenor abovementioned the said Letter imported his Consent to the Marriage and that the Marquess having consented he could not claim the Benefite of the Marriage Vide supra 3. January 1677. D. 435. Tailfer contra Sandilands eod die A Curator having in his Accompts given in an Article of Incident Charges upon occasion of the Minors Affairs viz. That he had met with Agents and others in Taverns in Relation to the Pupills Affairs and had been at Charges in drinking with them extending to a considerable Sum during the whole time of his Charge The Lords did not allow the same in the Terms foresaid But Ordained him to condescend upon the particulars And if he kept a Book and Diary of his Debursements so that he might warrantably declare that he had truely debursed the particulars thereinmentioned they enclined to modify the same to such a Sum as they should find reasonable D. 436. Home of Ford contra Steuart 24. January 1677. A Wadset being granted in these Terms That the Wadsetter should possess the Lands and that the Granter should free the Wadsetter of Levies of Horse and Feu-duties and Ministers Stipends It was Found that the Wadsetter is not Lyable to Compt and Reckon for the Duties and superplus of the same exceeding the Annualrent In respect the Wadset was a proper Wadset and the Wadsetter was not free of all Hazards of the Fruits Tennents War and Vastation Redford Reporter Mr. Thomas Hay Clerk D. 437. Ronald Grahame contra Sarah Rome eod die JOhn Rome being obliged by his Contract of Marriage with his second Wife to provide 10000 Merks in favours of himself and his Spouse in Conjunct-fee and the Heirs of the Marriage whilks FailÈieing to his own Heirs and Assigneys And to provide also 5000 Merks in favours of the Remanent Bairns of the said Marriage The Lords Found That the Father was Fiar of the said Sums and that the Heir of the Marriage and Remanent Bairns had an Interest only to succeed to him as Heirs of Provision in the same And that the Creditors might affect the said Sums and would be preferable to the Bairns Notwithstanding their Debts were Contracted after the said Contract of Marriage and Inhibition thereupon seing the Inhibition could not take away his Fee And the Import and Effect both of the said Obligements and Inhibition is only that the Father should do no fraudulent Deed without an Onerous Cause in prejudice of the same Gosford Reporter D. 438. Ardblair contra Wilson eod die A Bond being granted by James Bisset of Neitherbalcarne to the Laird of Ardblair for Love and Favour to be payed after his decease The Lords Found That the said Bond being granted without an Onerous Cause to be payed in manner foresaid after the Granters decease could not prejudge posterior Creditors who were in bona fide to lend their Money notwithstanding any such Latent Deeds and Bonds This Decision seems to be hard Seing it was lawful both to the Granter and Receiver of the said Bond to grant and receive the same And the said Donation being lawful ab initio could not become thereafter unlawful by any Deed of the Granter And Fraud cannot be pretended but where Creditors or others the time of the granting of such Bonds were prejudged unless it did appear by some speciality and circumstance in the case that there had been a design to Cheat and Circumveen these who were to lend their Money by granting and settleing upon the Relations of the Debitor his Estate and thereafter to get in his Hands his Creditors Means whom he was not able to satisfy which was Found in the Case of Maisson and Pollock and was not Alledged in this Case Nevoy Reporter Mr. John Hay Clerk D. 439. Sinclair contra Home of Renton eod die A Bond of Corroboration being granted for a Sum due upon a Wadset with power to use Execution without Requisition The Lords Found That the Creditor may summarly compryse upon the same without previous Requisition Glendoich Reporter Mr. John Hay Clerk D. 440. Nairn contra Stuart of Innernytie eod die A Presentation being granted by a Bishop to a Prebendary in favours of a person dureing his Lifetime and after his decease to his Son The Lords Found in a multiple poinding and competition betwixt the persons substitute in the said Presentation and another Prebendar provided by the succeeding Bishop by the decease of the first Prebendar That the Substitution contained in the Presentation foresaid did expire by the decease of the Father and that the Substitution was void In respect the Bishop could not in prejudice of his Successor grant a Presentation in the Terms foresaid bearing a TailÈie and Substitution Castlehill Reporter Mr. John Hay Clerk D. 441. Drumellier contra E. Tweeddale eod die IT being objected against Major Bunting being led as a Witness for Drumellier against the Earl of Tweeddale That he had given Partial Counsel at least had concerned himself as a Party for Drumellier In swa far as he had been at Consultations with him in Relation to the Process The Lords Found That he could not be a Witness tho he was a person of Integrity above exception and that he was free to declare that at the said Consultations the point whereupon he was to be used as a Witness was not in consideration Gibson Clerk D. 442. Grange Dick contra Oliphant eod die
AN Assignation being granted for relief and payment of certain Sums mentioned in the Assignation for which the Assigney was Cautioner for the Cedent the same was questioned upon that head that it was never delivered but was still in the Cedents Hands The Lords Found That the said Assignation was never delivered And yet they Found That it was an effectual Evident in favours of the Assigney In respect the Cedent had made the same publick by a Horning thereupon Sir George Lockheart c. alteri Cuninghame c. In praesentia D. 443. Ker contra Kers 25 January 1677. A Disposition being questioned as being made in lecto at least delivered then It appeared by the Deposition of one of the Witnesses used for proving the Lybel that the said Write was subscribed diverse Years before the Disponer was on death-bed and that the same was delivered before death-bed to the said Witness and that the Defunct having called for it on death-bed for drawing two other Dispositions of the Lands contained therein one in favours of the Pursuer the Disponers Heir and the other in favours of a Son of the Disponer who was Father to the Person in whose favours the Disposition in question was made And upon debate amongst the Lords what should be the import of the said Testimony seing the Depositar did not declare in what Terms the same was given to him by the Disponer whether to the behoof of the said Person in whose favours it was made or not or upon any other account for keeping the same so that the Disponer might call for and alter it It was Found 1. That the Disponer might have revocked the same In respect it did not appear that it was delivered to the behoof of the Person to whom it was made This Decision seems to be hard in respect the Disposition was now in the Hands of the Receiver so that it was to be presumed that it was delivered either to him or to the said other Person to his behoof and the delivery ought to be construed and presumed to have been ut operetur and the nature of the Act it self imports that it should be to the behoof foresaid It not being to be imagined that if the Disponer had intended to have retained the Power in his Hands either to make the said Right effectual or not he would have given it out off his Hands 2. The Lords Found Upon the Testimony foresaid That the Disponer having revocked the said Disposition not simply but to the effect foresaid that the said two Dispositions should be granted The Pursuer therefore had not Right to the whole Lands contained in the said first Disposition but that the same should divide conform to the said two Dispositions Mr. Thomas Hay Clerk In praesentia D. 444. Procurator-Fiscal of Glasgow contra Cowan 26 January 1677. THE Commissar of Glasgow having sustained Process at the Instance of the Procurator-Fiscal for the tryal of a falsehood of Executions whereupon a Decreet had proceeded and having upon Probation of the falsehood decerned the user of the said Executions to pay 300. lib. to the Procurator-Fiscal as a Fine and the said Decreet being suspended The Lords Found That the Commissar was not competent Judge to the improbation of Executions by way of Action seing they cannot reduce their own Decreets and Improbation is a Reduction ex capite falsi Justice-Clerk Reporter Mr. Thomas Hay Clerk It is to be considered that the most part of Decreets befor Inferior Judges are for Null-Defence and upon false Executions and it were hard that there should be no Remedy but by Improbations before the Lords which may depend long and are very chargeable So that Decreets before Inferior Judges being for the most part for inconsiderable Sums the Remedy should be worse than the Mischief It appears indeed that the Commissars have not power to Fyne that being a Criminal Jurisdiction and that they are not Judges to Improbation by the indirect manner The Tryal of Falsehood by circumstances and presumptions being Altioris Indaginis and of that Difficulty that it ought not to be left to an Inferiour Judge Item The Tryal of Falsehood as to that effect that Falsaries may be punished ought not to be by any Inferior Judge But it seems to be just and necessary that Parties grieved by such Decreets should be allowed to pursue the obtainers of the same to hear and see them reponed against the said Decreets upon that Ground that they were not cited to the same to be proven by the Witnesses and Executer himself declaring that they pursue to that effect allanerly And it appears not to be inconsistent with Law and Form that this course should be taken seing the Judge does not reduce his own Decreet ex capite iniquitatis and it may be provided that such Pursutes tho they be upon the matter Improbations are only to the effect foresaid and that no other effect or consequence shall follow upon the same and multa fiunt per indirectum which cannot be directly And if a Party who is holden as confest should raise a lybel before an Inferior Judge that it may be Found that he was not Contumax being out of the Countrey or Sick or detained by Storm or some other insuperable Impediment and that therefore he should be reponed and the Decreet should be holden as a Lybel such a Pursute would not be incompetent tho in effect it would be a Reduction upon the matter D. 445. Donaldson contra Rinne 27 January 1677. IT was moved whether or not a Decreet of an Inferior Judge being questioned upon that Ground of Iniquity that the Lybel was not proven and the Depositions of the Witnesses being produced by the Pursuer ab initio The Lord of the Outer House may advise the Probation Or if it ought to be advised by the whole Lords It was Found That the Depositions being produced as said is the Lord may give his own Interloquitor as upon any other Write produced ab initio to instruct the Lybel Tho some of the Lords were of Opinion that the Probation ought to be considered and advised by the haill Lords And it was hard that the Probation being found sufficient by a competent Judge it should be in the power of one single Lord to review the same and find the contrare Mr. John Hay Clerk D. 446. Murray Pupil contra _____ 31. January 1677. A Pupil of 4. Years of Age being pursued upon the Passive Title of a Charge to enter Heir and the Friends conceiving that it were fit to Renounce none of them being Curators nor being willing to meddle and to authorize the Pupil to renounce The Lords Decerned but superceeded Personal Execution until the Pupil should be past Pupillarity Castlehil Reporter D. 447. Master of Rae contra Sinclar of Dumbaith 1. February 1677. SInclar of Dumbaith Sandside and others having in a Hostile manner invaded the Lord Raes Country There was a Criminal pursute intented against them for the
given them to the Pursuer to be grassed he might have taken away his own Goods It was Replyed That the Pursuer was not obliged to debate the Right and property of the said Goods but in spolio he needed Lybel no more but that the Goods were upon his Ground and in his Possession and taken away vi and in manner Lybeled And spoliatus ante omnia restituendus The Lords debated among themselves whether the Defence be Relevant and did not decide the case Some being of Opinion that if it should evidently appear that the Pursuer was not in Possession of the Goods as suos but in behalf of the Defender as if there were a Writt betwixt the Pursuer and Defender bearing that the Goods were the Defenders and that the Pursuer contractu Locationis Conductionis had taken the same in graseing that the Defender could not be Lyable for SpuilÈie of his own Goods But if it should appear that there was any violence in taking them away he may be pursued for a Riot D. 460. Drumkilbo contra Mcmath and Oliphant eod die JAnet Mcmath Lady Grange being Creditrix to the Laird of Kilspindie And having upon an Arrestment in the hands of Drumkilbo obtained a Decreet to make forthcoming There was thereafter a Suspension of double poinding against the said Janet Mcmath and Sir Laurence Oliphant of Gask who pretended Right to the Sum due by Drumkilbo by an Assignation intimate before the Arrestment And in the Competition foresaid the said Sir Laurence was preferred But thereafter in an Improbation of the said Assignation at the instance of the said Janet Mcmath the said Sir Laurence having abiden by the same It was Found after a long and litigious dependence by the space of 50 Years that the Assignation was false And William Dick of Grange the said Janet her Son having thereafter intented a pursute against the said Sir Laurence to hear and see it declared that in respect the said Sir Laurence by his compearance and making use of the said false Assignation had been prefered and had rendered the foresaid Diligence by Arrestment ineffectual and had transacted and made benefite of the said false Assignation That therefore In swa far as he was Lucratus he should make the same forth-coming for payment of the Pursuers just Debt Especially it being considered that he had Discharged one of the Cautioners in Drumkilbo his Bond It was Answered That he was in bona fide to acquire a Right to the said Assignation neither knowing nor being accessory to the Forgeing of the same and he had made no benefite by uplifting from Drumkilbo any part of the said Debt but by transferring his Right in favours of Mr. John Blair which he had done bona fide And as to the Discharging the Cautioner it could not prejudge the Pursuer seing the Discharge would fall in consequence of the Assignation The Lords Found That albeit he were not accessory to the Forgery yet having used a false Write and having litigiously so long maintained the same and upon that occasion the Pursuer be ng altogether frustrate he ought to be Lyable in quantum lucratus and what he had gotten more by the Transaction with Mr. George Blair then he had given for acquireing the said Right And the Lords reserved Action to the Pursuer against the Cautioner And in case the Cautioner should be AssoilÈied without prejudice to have recourse against the said Sir Laurence as Accords Actores Lockheart Monnypenny c. alteri Cuninghame c. Mr. Thomas Hay Clerk In praesentia D. 461. _____ contra The Laird of Cramond eod die MR. Cornelius Inglis being Debitor to Mr. John Inglis of Cramond in the Sum of 3500. Merks He did give to Cramond for Security of the said Sum and for relief of Cautionries for him extending to towards 10000 M. a Bond for payment and relieving him of the said Sums with an obligement to Infeft in the Lands thereinmentioned for his Security and relief of the said Sums and a precept of Sasine whereupon Infeftment followed And thereafter Mr. Patrick Inglis the said Mr. Cornelius his Eldest Son did grant a Bond to Cramond relateing expresly to the said former Bond and Right of Relief and in Corroboration thereof and the Infeftment thereupon containing an Obligement for Payment and releif of the said Sums Thereafter the said Mr. Patrick did obtain from his Father a Right and Infeftment of the said Lands upon that narrative that he had undertaken the payment of his Fathers Debts and that he was engaged for him and that the said Right was granted to him for his Relief whereupon he obtained Possession and before any Diligence at the instance of any of the other Creditors he did pay some Annualrent to Cramond upon a Discharge relateing to Cramonds Right and Infeftment foresaid Thereafter there being a Multiple poinding raised against Cramond and some of the Creditors who had deduced a Comprysing against the said Mr. Patrick of his Right the Creditors Alledged that they ought to be preferred because Cramonds Right was only base and the said Mr. Patrick's Right was cled with Possession before any pretence of Possession in the person of Cramond and that they having Comprysed Mr. Patrick's Right are thereupon preferable to Cramond Whereunto it was Answered That Cramonds Right being a Right of Relief could not take Possession ex natura of the Right until a distress and because it was provided by the Right it self that Cramond should enter to the Possession in case of distress and in case he should not be payed of his Annualrent which he could not do before Declarator And that the Lords had diverse times Found that Infeftments of Warrandice whereupon there could be no Possession before Eviction should be preferred to posterior Infeftments and that Infeftments of Annualrent being anterior should be sustained in a Competition with posterior base Infeftments cled with Possession Because the first Term of Payment of the Annualrent was not come when the posterior Infeftment came to have Possession and that the Competition was not betwixt Cramonds and the Comprysers Infeftment upon the Comprysing but Mr. Patrick's own Infeftment and that Cramonds Infeftment was cled with Possession before the Compysers Right and Interest by payment of the Annualrent of the said Sum due to Cramond himself as appeared by the Discharge accepted by Mr. Patrick relating to Cramond his Right and Infeftment foresaid And that base Infeftments by the Common Law being valide And by the Act of Parliament K. Ja. 5th in anno 1540. It being provided that for obviating Fraud by granting private and latent Infeftments in prejudice of posterior Infeftments that are publick being either holden of the Superior or by Possession the said Act of Parliament cannot be extended to this Case In Respect Cramonds Right cannot be said to have been fraudulent and private as to Mr. Patrick In respect he did not only know the same but did ratify and corroborate the said
of Edinburgh contra the Commissars of Briechen P. 64. Commissar of St. Andrews contra Watson P. 209. Craig contra Edgar P. 85. contra Laird of Cramond P. 224. Cranston contra Wilkieson P. 9. Cranston contra Ker P. 113. Cranston contra Broun P. 86 Craufurd contra Town of Edinburgh P. 16. Craufurd contra Gordon P. 183. Crie contra Findlater P. 37. Cruickshanks contra Watt P. 122. Cuming contra Johnston P. 16. Cuningham contra Lees P. 75. Cuningham contra Maxuel P. 152. Cuningham contra Halyburton P. 212. D. DAlling contra MckenÈie P. 153. Dalrymple contra P. 31. DalÈiel contra P. 47. Davidson contra Town of Innerness P. 32. Davidson contra Richardson P. 49. Davidson contra Wauchop P. 188. Dick contra Dick P. 202. Dick contra Oliphant P. 215. Dickison contra Sandilands P. 5. Donaldson contra Rinnie P. 217. Douglas contra L. Wamphray P. 258. Douglas contra Jackson and Grahame P. 121. Douglass contra Carlyle c. P. 132. DrumelÈier contra E. Tweeddale P. 191 215. Drumkilbo contra Mcmath and Oliphant P. 223. Drummond contra MenÈies P. 92. Drummond Rickarton contra P. 157. Dumfermling E. contra E. Callender P. 161 178. Dundass contra Turnbul and other Creditors of Whitehead of Park P. 163. Dundee Town contra E. Findlater P. 59. Dundonald E. contra Glenagies and the E. Marr P. 141. Dunmure contra Lutfutt P. 138. Dunse Presbytrie contra P. 122. Durham contra Durham P. 195. E. EDinburgh Town contra E. Loudoun P. 101. Edmondstoun contra Preston P. 103. Elies contra Keith and Wiseheart P. 4 38 Elies contra Wiseheart P. 10. Elies contra Hall and others P. 148. F. FAlconer contra E. Kinghorn P. 6. Ferguson contra More P. 4. Ferguson contra P. 69. Findlay contra Little P. 184. Fyffe contra Daw P. 39. Forbes contra Blair P. 33. Forbes contra Innes P. 52. Forbes contra Ross c. P. 148. Fordel contra Caribber P. 211 213. Fountain contra Maxuel P. 48. Fraler contra Hog P. 173. Fullerton contra Laird of Boyne P. 116. G. GAlbraith contra Lesly P. 175. Gardner contra Colvil P. 44. Gibson contra Fiffe P. 160. Gibson contra Reynold TailÈeor P. 145. Gilchrist contra Murray P. 136. Gilespie contra Auchinleck P. 50. Glasgow Town contra P. 58. Glasgow Town contra Greenock P. 193. Galsgow Colledge contra Parochiners of Jedburgh P. 195. Glasgow procurator Fiscal contra Cowan P. 216 Glencairn Earl contra Brisbaines P. 204. 213. Glencorse Laird contra his Brethren and Sisters P. 53. Glendoning contra E. Nithsdale P. 102. Gordon contra Pitsligo P. 82. Gordon and Ludquharne contra P. 93. seq Govan contra Paip P. 21. Grahame contra Rome P. 214. Grants and Row contra Viscount of Stormount P. 4. Grant contra Grant P. 126. Grant contra Barclay P. 158. Grant contra Lord Bamff P. 198. Gray contra Gordon P. 16. Gray contra Forbes and Lindsay P. 68. Gray contra Cockburn P. 129. Grierson contra Laird of Lag P. 192. Grott contra Sutherland P. 68. H. HAll contra Murray P. 138. Halcartoun Lord contra Robison P. 144. Halyburton contra Halyburton P. 16. Halyburton contra Scott P. 63. Halyburton of Innerleiths Petition P. 145. Hamilton contra Broun P. 27. Hamilton contra Smith P. 37. Hamilton contra Symenton P. 38. Hamilton contra Lord Beilhaven P. 49. Hamilton contra Earl of Kinghorne P. 81. Hamilton contra Maxuel P. 133. Harper contra Hamilton P. 13. Harroway contra Haitly P. 31. Hartshaw contra Hartwoodburn P. 27. Hattoun Lord contra Baterson P. 66. Hay contra Litlejohn P. 28. Hay contra Magistrates of Elgine P. 17. Hay contra Oliphant P. 36. Hay contra Drummond P. 47. Hay contra Jamison and Alexander P. 108. Hay contra Gray P. 125. Hay contra Alexander P. 162. Heckford contra Ker. P. 129. Hedderwick contra Wauch P. 10. Hempsfield contra Bannatyne P. 98. Henderson contra Henderson P. 68. Henderson contra P. 40. Hermistoun contra Lord Sinclar P. 39. Hermistoun contra Cockburn P. 69. contra Hepburne P. 74. Hilton contra Lady Cheynes P. 165. Hog contra Countess of Home P. 49. Holmes contra Marshell P. 218. Home contra Creditors of Kello P. 26. Home contra Countess of Murray P. 35. Homes contra Paterson P. 50. Home contra Fewars of Coldinghame P. 52. Home contra Tailzifer P. 58. Home and Elphingston contra Murray P. 89. Home contra Scot. P. 192. Home contra Steuart P. 214. I. JAffray contra Murray P. 185. Jaffray contra Laird Wamphray P. 211. Inglis contra Boswell P. 187. Inglis contra Inglis P. 195. Inglis contra Laurie P. 211. and Laird Innes contra P. 57. Innerness Town contra Forbes c. P. 77. Innes contra Innes P. 99. Johnstoun contra Cuninghame P. 35. Johnstoun contra Erskine P. 62. Johnstoun contra Cullen P. 165. Johnstoun contra Orchartoun P. Ibid. Johnstoun contra Rome P. 184. Johnstoun of Wamphry Supplicant P. 153. Irving contra Carruthers P. 117. Irving contra Forbes P. 169. Irving contra Irving P. 175. Justice contra Stirling P. 58. Justice Clerk contra Lamberton P. 46. K. KEith contra Lundie P. 39. Keith contra Grahame P. 60. Kelhead contra Irving and Borthwick P. 92. Kennedy contra Hamilton P. 19. Ker contra Ker. P. 39. 61. 191. 216. Ker contra Ruthven P. 71. Ker contra Hunter P. 200. Ker contra Fleyming P. 35. Key contra Creditors P. 142. Kilburny contra Cuningham P. 70. Kincaid contra Gordon P. 225. Kinghorn Earl contra Laird Udney P. 53. Kings Majesties Letters to the Lords of Session P. 71. Kinloch contra Rait P. 91. Kinnier contra P. 122. Kyle contra Gray P. 126. L LAmingtoun ontra Raploch P. 177 Langlands Supplicant P. 137. Lauderdale Earl contra Vassals of Musselburgh P. 48. Lauderdale Earl contra Lady and Lord Yester P. 134. Lepar contra Burnet P. 5. Lesly contra Bayne P. 21. Lesly contra Lesly P. 25. Lesly contra Fletcher P. 181. Letter from the Lords of Session to the King P. 102. Linlithgowes Freeholders contra their Commissioners to Parliament P. 76. Litlejohn contra Mitchel P. 198. Livingston contra Garner P. 137. Lugtoun Lady contra Hepburne and Creichtoun P. 67. Lumsden contra Summers P. 30. Luss Laird contra Earl of Nithsdale P. 100. Lyon King at Arms contra P. 13. M. Mackbrae contra Mclaine P. â—7 Mcintoish contra Frazer P. 100. Mcintoish contra MckenÈie P. 110. MckenÈie contra Fairholm P. 11. 14. 23. Mckâ—ttrick contra P. 56. Mcleod contra Young P. 5â— Mcmillan contra Meldrums P. 128. Mcneâ—sh contra Bryce and her Husband P. 155. Mcquaill contra Mcmillan P. 15â— Malloch contra the Relick of David Boid P. 222. Marshell contra Forrest and his Spouse P. 160. Marshel contra Holmes P. 195. contra Martine P. 118. Mastertouns Creditors and Relict P. 154. Maxuel contra Tennents of Duncow P. 64. Maxuel contra Maxuel P. 105. contra Maxuel P. 100. Meldrum contra Tolquhone P. 104.
the Trust mentioned in the Bill was only to him as quilibet not as an Advocate D. 291. _____ contra _____ eod die A Discharge alledged granted by a Minister to one of the Heretors of the Paroch of a part of his Stipend was quarrelled as false and did appear to be vitiate in a process at the instance of the Minister for his Stipend And the user of the same being urged to abide by it did offer to abide by it with a quality viz. That the payment not being made by the Heretor himself but by his Tennent who took the said Discharge in the Heretors Name he did abide by the same a Write truely delivered by the Tennent The Lords did not sustain the said quality Unless the Heretor would produce the Tennent and abide by the same as being truely subscribed and not vitiate which the Tennent did D. 292. Key contra Her Creditors eod die THE Pursuer of a Bonorum having given her Oath that there was no fraudulent Deed done since the Disposition whereby the Pursuer cesserat and Disponed omnia bona It was urged That the Pursuer should declare also that no fraudulent Deed had been done by her to defraud the Creditors whether before or after the Disposition which was refused by the Lords in respect that the ordinary Oath given by such Pursuers did run in the Terms foresaid that they had made no fraudulent Right since the subscribing of the Disposition Some of the Lords were of Opinion that the Pursuer should have declared that she had done no fraudulent Deed at any time seing cessio bonorum is an extraordinary remedy indulged to persons who are become lapsi upon some extraordinary occasion wlthout their own fault or fraud and upon that account deserved favour which was not to be given to fraudatores who at any time had taken indirect wayes to prejudge their Creditors And if the Pursuer the very day before she subscribed the Cession and Disposition had made an anterior Right to prejudge her Creditors it were most inconvenient and absurd that her Oath should only be received in these Terms that she had made no Disposition or fraudulent Deed since the granting of the Disposition in favours of the Creditors And as to the pretence of custom and the conception of the Oath it ought not to be respected seing it cannot be said that the Oath of Bankrupts in the Terms that it is now urged was desired and refused and if there had been any defect in the conception of the Oath it ought to be helped D. 293. Bairdner contra ColÈier eod die IN a Process for abstracted Multures The time of the advising of the Cause these points were debated amongst the Lords viz. Whether or not the Right of a Miln being Feued by the Abbot in these Terms cum astrictis multuris did import astriction of all the Grains growing so that these that were astricted should be Lyable to bring all the Corns that grew upon the Lands to the Miln and in case any such be sold the Heretors and their Tennents should be Lyable for astricted Multures And 2. There being Decreets recovered at the instance of the Feuar of the Miln against the Feuars of the Lands for abstracted Multures of grana crescentia if the same should import Astriction as to all such Granes tho neither the Right of the Feuar of the Miln nor of the Heretors of the Lands be express of grana crescentia but only of the Terms foresaid cum astrictis multuris Some were of the Opinion as to the first point That a Feu of a Miln in the Terms foresaid cum astrictis multuris should import nothing else but that they that were within the sucken and astriction should be lyable only to grind at the Miln all such Corns that they should have need and occasion to grind Seing Thirlages are a most odious servitude and ought to be taken strictly And Multures being Moliturae and due for grinding they ought to be understood only in the case of Corns which the Feuers do bring to the Miln to grind or which they have need and use to grind and yet abstract and go to other Milns Otherwayes there should be no difference betwixt the Astriction of grana crescentia and an ordinary astriction 2. The case in question was of a Miln Feued by the Abbot of Culross and of Lands likewayes Feued by himself after the Feu of the Miln and the time of the Feu of the Miln Lands being the Abbots own either in mainsing or set to Tennents It cannot be thought that the Astriction was in other terms than such as Tennents are in use to be astricted to their Masters Miln and beside the Teind and Seed and the Duty payable to the Master which being payable to the Abbot the time of the Feu of the Miln was free of astriction the Tennent having the residue of the Rent for entertaining of his Family and for defraying the Charges of the Labouring and Servants Fies and other necessar Expences which could not be defrayed otherwayes but by selling some of the Corns growing It cannot be conceived that the Abbot or any other Master would astrict his Tennents in these Terms that they should be lyable for dry Multures except it were exprest and that the Astriction had been granorum crescentium Yet the Lords did demurr as to this point In respect it was vehemently urged by _____ that the Astrictions in the Terms foresaid ought to be understood of grana crescentia otherwayes it should be in the power of these who are astricted to sell all their Corns and to buy Meal for their Family and so to elude the Thirlage Albeit It was Answered That it was not to be presumed that Feuers or Tennents would do so and if they did they ought to be lyable for abstracted Multures effeirand to such quantities as were necessary and they were in use to grind for their Families Another point was Agitated and debate amongst the Lords viz. That the said Decreets could not be obtruded to the Defender seing neither he nor his Author was called to the same and res was inter alios acta But the Lords did not decide these points but recommended to some of their number to endeavour to settle the Parties D. 294. Oliphant contra _____ 7. July 1675. _____ Oliphant desired an Advocation from the Town _____ Court upon these Reasons viz. 1. That the Lybel was to be proven by the Defenders Oath which he was to qualifie And 2. That the Defender was to prove a Defence by the Pursuers Sons Oath who was out of the Country and the Town could not give a Commission for taking his Oath Both which Reasons were thought not to be Relevant and the Advocation refused In respect all Judges ought to receive Oaths with intrinsick qualities and Commissions may be direct by any competent Judge D. 295. Lord Halcartoun contra Robison July 1675. THE deceast Lord Halcartoun being oblidged by
Contract betwixt him and his deceast Father to Infeft Mistress Margaret Falconer his Sister in an Annualrent of the principal Sum of 1000 Merks out of the Lands of Halcartoun redeemable upon 1000 Merks And to pay the principal Sum upon Requisition Sir Patrick Falconer immediat Younger Brother and Heir of Line to the said Mrs. Margaret Assigned the said Sum and Contract in favours of Robert Robertson And the said Robert having intended Action against the now Lord Halcartoun as representing his Father It was Alledged That the said Sum being conquest in the person of the said Mistress Margaret it did not belong to the Heir of Line but to the immediat Elder Brother as Heir of Conquest The Lords having heard the Cause in praesentia and being resolved to decide the question betwixt the Heir of Line and Heir of Conquest as to Heretable Bonds bearing such Obligements to Infeft which had been often before in agitation but never decided but the time of the English Did Find that the said Bond and Sum did belong to the Heir of Conquest who would have succeeded in case the Right had been perfected by an Infeftment Some of the Lords were of the Opinion That Bonds of that Nature should belong to the Heirs of Line for these Reasons 1. That the Heir of Line is General Heir and Successor in universum Jus tam active quam passive and is lyable to the Onus Tutelae and other Burdens and penes quem onus penes eundem emolumentum unless the benefit of Succession be provided otherways either Provisione hominis in the Case of TailÈies or Legis and there is no Law settling upon the Heir of Conquest the Right of Succession as to Heretable Bonds whereupon no Infeftment has followed And the Law of the Majesty _____ is only in the Case of Terrae Tenementa Feuda as appears by the very Words of the said Ancient Laws and by Craig and Skeen de Verborum significatione in verbo Conquestus and verbo Breve de morte antecessoris 2. As Bonds cannot be called Heretage so they cannot be esteemed to be Conquest Heretage being properly Lands wherein a Person succeeds as Heir to his Predecessor and if the Heir of Conquest who is now found to have Right to such Bonds should decease tho the samen would descend and belong to the Heir of Line yet such Bonds cannot be called Heretage And Minors qui non tenentur placitare de haereditate paterna could not plead the same Priviledge in the case of Heretable Bonds 3. Lands and Feuda can only be said to be Heretage or to be Conquest when Parties have a real Right to the same by Infeftment but as to Bonds they do not settle Jus in re but at the most a Jus ad rem 4. Comprisings Dispositions and Reversions being more of the nature of Conquest especially Reversions which are real Rights and do militate not only against the Granters but singular Successors do descend and pertain to the Heir of Line and not to the Heir of Conquest D. 296. Veatch contra Pallat. 10. November 1675. THE Lords in the Case beforementioned February 9 and 12. 1675 Veatch against Pallat having resumed the Debate and it appearing upon Tryal that the Common Debitor Sanderson the time of the granting of the Assignation in anno 1662 in favours of Ker and Brown was not only Rebell but was in effect Fallitus and Lapsus They preferred Veatch to Pallat. D. 297. Gibson contra Rynold and Taylor 16. November 1675. A Disposition being made by a Woman cloathed with a Husband of her Liferent of a Tenement redeemable upon the payment of a certain Sum within a short Term therein mentioned allanerlie A Decreet of Declarator of the expireing of the Reversion was obtained and thereafter a Decreet of Removing at the instance of the Person Infeft upon the said Disposition against the said Woman and her Husband Whereof a Reduction and Suspension being raised upon that reason that the suspender was cloathed with a Husband the time of the expiring of the said Reversion and of the said Decreets so that non valebat agere nor use the Order of Redemption and the Husbands Negligence in suffering the Reversion to elapse and the said Decreets to be obtained ought not to prejudge her seing she was content yet to purge by payment of the Sum contained in the Reversion The Lords upon Debate amongst themselves had these Points in consideration viz. 1mo Whether or not a Redemption being limited and temporary as said is in the Case foresaid there may be yet place after the elapsing of the Term to purge And some of the Lords were of the Opinion that Reversions being stricti Juris there can be no Redemption neither in the case of Legal nor Conventional Reversions after elapsing of the Term nor place to purge But this Point was not decided 2. It was agitat whether a Woman cled with a Husband may be heard to purge upon pretence that non valebat agere as to which Point some of the Lords did demurr and it was not decided The Letters being found orderly proceeded upon an other Ground viz. In respect of the Decreet in foro contradictorio But it is thought that such Reversions should expire even against Women cloathed with Husbands seing it cannot be said that they are in the case of Minors and non valentes agere because they are cloathed with a Husband And by the contrary having the assistance and advice of their Husbands they are more able to go about their Affairs And if their Husbands refuse to concur they may apply to the Lords and desire to be authorized by them Strathurd Reporter Monro Clerk D. 298. Halyburton of Innerleith 17. November 1675. THE Lords upon a Bill presented by _____ Halyburton late of Innerleith Prisoner in Edinburgh for Debt did permit that until January next he should in the Day-time go out with a Keeper the magistrates being lyable if he should escape This was done upon pretence that he intended to settle with his Creditors which he could not do unless he were allowed the Liberty foresaid But some of the Lords were of the Opinion that the Emprisonment of a Debitor being the ultimate length of Execution and not only custodiae causa but in effect that taedio and foetore carceris Debitors may be driven to take a course with their Creditors That therefore the Lords had not power to give any Indulgence or Permission contrare to Law and in prejudice of Creditors without their consent D. 299. Mr. Vanse 18. November 1675. CAptain Martine being pursued before the Admiral for wrongs done by him in taking free Ships and Goods upon pretence that he was a Caper and that the same belonged to the Kings Enemies and having desired an Advocation the Lords thought fit that he should find Caution and because he refused and pretended he was not able did commit him and thereafter he having escaped out of the Tolbooth of
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they