no Intimation being Contracted by and so known to Ker himself and therefore found Ogilbies Discharge ineffectual Town of Edinburgh contra Lord Ley and William Veatch July 8. 1664. IN a Double Poynding raised by the Town of Edinburgh against my Lord Ley on the one part and William Veitch upon the other The Ground whereof was this The Town of Edinburgh being Debitor to umquhil Dowglas of Mortoun in a Sum of Money his Son Confirmed himself Executor to his Father and Confirmed this Sum which was Arrested in the Towns hands by William Veatch first and thereafter by my Lord Ley. It was alleadged for William Veatch that he ought to be preferred having used the first Diligence by Arresting several years before my Lord Ley and having obtained Decreet against the Town before the Commissars but before it was Extracted my Lord Ley obtained Advocation It was alleadged for my Lord Ley that he ought to be preferred because the sum Arrested being due to umquhil Dowglas of Mortoun There was never a Decreet obtained at the Instance of this Executor establishing it in his Person and therefore this Competition being betwixt William Veatch who was only the Executors proper Creditor and not the Defuncts Creditor The Defuncts Money ought to be applyed First to pay the Defuncts Debt before the Executors Debt albeit the Executors own Creditor had done the first Diligence The Lords found that the Lord Ley as being Creditor to the Defunct ought first to be preferred seing now he appears before the Debt was Established in the Person of the Executor Nisbit contra Lesly Eodem die JOhn Nisbit as Assigney Constitute by Major Drummond Charges Lachlan Lesly to pay four Dollars for ilk Souldier of sixty conform to a Contract betwixt Major Drummond and Lodovick Lesly for whom Lachlan was Cautioner Lachlan Suspends on this Reason that the Charge is to the behove of Francis Arneil who was Conjunct Cautioner and bound for mutual Relief and therefore he can ask no more then his share of what he truely payed in Composition The Charger answered that he nor Francis Arneil were not Charging on the Clause of Relief but on the principal Contract as Assigney And though he had gotten Assignation thereto gratis he might crave the same except his own part Which the Lords found Relevant Heugh Kennedy contra George Hutchison Eodem die HEugh Kennedy as Assigney by Sir Mark Ker to a Bill of Exchange which was drawn by George Hutchison upon William Schaw at London payable to Sir Mark for like value received from him did obtain Decreet against George Hutchison and one Schaw as Intrometters with the Goods of William Schaw both for the Bill it self and for the Exchange and Re-exchange the Bill being Protested for not payment This Decreet being Suspended it was alleadged that there could be no Exchange or Re-exchange nor any thing payed for the Bill because the Bill was not lawfully protested but being accepted by Schaw at London he shortly after dyed and it was protested at his house where he dyed before none of his Relations having neither Wife nor Children The Charger answered that he took Instruments on the Defense and alleadged that he needed not to prove the passive Title Secondly That he had done all that was requisit having protested at the Dwelling-house where Schaw resided The Lords found that in this Case that Death Interveening which was an Accident there could be no Exchange nor Re-exchange because this was no voluntar Failzâ—e nor fault But found that the Charger as Assigney might either take himself for the single value against the Person drawer of the Bill or to his Successors on whom it was drawn Earl of Airly contra Iohn Mcintosh Eodem die THe Earl of Airly pursues Iohn Mcintosh for Contravention and Lybels these Deeds that the Defenders Herds had been found Pasturing several times far within his Ground for a considerable time which Ground was without all Controversie the Pursuers The Lords Sustained the Lybel it being always proven that the Herd herded by his Masters Command or Ratihabition and referred to themselves at their conclusion of the Cause to consider whether they would sustain the several times of hirding as several Deeds toties quoties or if only as one Deed made up of all and how far the witnesses should be received as to command or direction of the Defender Dumbar of Hempriggs contra Frazer July 11. 1664. HEmprigs as Executor to Dumbeath having pursued the Lady Frazer Relict of Dumbeath and the Lord Frazer for his Interest for payment of Executory intrometted with by the Lady there being Litiscontestation in the Cause Dumbeath calls the Act and craves the Term to be Circumduced against the Lord Frazer who alleadged that now his Lady was dead and so his interest being jus mariti ceased It was answered Litiscontestation being made the Debt was Constitute in the Husbands Person as if he had Contracted to pay it Litiscontestation being a Judicial Contract Secondly The Lord Frazer was Decerned to give Bond to pay what his Lady should be found due Frazar answered that no Bond was yet given and that the Ordinance was only against him as he was cited which was for his Interest which is Seassed And which the Lords found Relevant and Assoilzied Grahame of Hiltoun contra the Heretors of Clackmannan Iuly 13. 1664. GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan for a sum of Money Imposed upon that Shire by the Commity of Estates the Heretors of the Shire have raised a Revew and alleadged that this Decreet being obtained before the Commissioners in the English time he has liberty to quarrel the Justice thereof within a year conform to the Act of Parliament and now alleadges that the saids Commissioners did unjustly repell this Defense proponed for singular Successors within the said Shire that they ought not to be lyable for any part of the said Imposition having Acquired their Rights long after the same and before any diligence was used upon the said Act of the Committee It was answered that there was no injustice there because this being a publick Burden imposed upon a Shyre by Authority of Parliament it is debiâ—um fundi and affecteth singular Successors especially seing the Act of the Committee of Estates was Ratified in the Parliament 1641. which Parliament and Committee though they be now Rescinded yet it is with expresse Reservation of Privat Rights acquired thereby such as this The Pursuer answered that every Imposition of this nature though by Authority of Parliament is not debitum fundi but doth only affect the Persons having Right the time of the Imposition whereanent the minde of the late Parliament appeareth in so far as in the Acts thereof ordaining Impositions to be uplifted during the troubles Singular Successors are excepted It was answered exceptio firmat regulam in non exceptis such an exception had not been needful if de jure singular Successors had been free It was
said is the Lords ordains the said Lord Caringtoun to be Exonered and Discharged of the saids Records and of his Trust in keeping of the same and ordain an Act of Exoneration to be extended thereupon in his Favours The Lords do ordain the Inventar of the Register Books to be set down in order in time coming and according to the several matters contained therein First of the Records of Parliament Secondly of the Records of Council Thirdly the Registers of Session and amongst them of Registrate Writs a-part of Decreets and Acts a-part and of Books of Sederunt Next to these the Registers of Exchequer Then the Registers of the Chancellory And thereafter the Registers of Seasins both the general Registers at Edinburgh and the special Registers of the Shires And in all to keep the order of time As for the Warrands of the Registers of Session since the year 1660. they are yet in the hands of the Clerks of Session And the former Warrands being in great Masses without any Order the Lords do appoint that the said Masses be sorted putting the Registrat Writs together and the Processes together and that the number of them both be taken and set down that thereafter they may be also digested according to the Order of time It is appointed that so soon as the Inventary shall be perfected it shall be insert in the Books of Sederunt ACT anent the manner of Booking Decreets of Registration November 21. 1676. THE Lords considering that where Registrations are persued by by way of Action it is and hath been the custom of the Clerks to keep in their hands the principal Writes decerned to be Registrate in the same manner as they do where Writs are Registrat upon the Parties consent Therefore the Lords ordain that these Decreets of Registration be Booked together with Bonds Contracts and other Writes which are Registrat upon the Parties consent according to the date thereof and that the Process be keeped with the Warrants of the Registrat Writes ACT anent the Registers of Seasins and Hornings in the several Shires Ianuary 4. 1677. THE Lords considering that by the Act of Parliament in Anno 1672. Concerning the Regulation of Judicatories the Keepers of the Registers of Hornings and Inhibitions and Seasins and Reversions in the several Shires are ordained to make exact Minut-books relating to these Registers in manner prescribed in that Act and the Sheriff Bailzie of the Regality or Royalty or their Deputs with two Justices of Peace if they be present are appointed at the times expressed in the said Act to take inspection of the saids Registers and the Minut-books relating thereto and after Collationing thereof to Subscribe the Minut-book under the Penalty of an hundred Pounds Scots for ilk Failzie in not meeting and comparing the saids Registers And the saids Lords to whom the care of seeing the Premisses done is committed by the said Act having by Missive Letters of the 31. of Iuly last direct to the several Sheriffs of this Kingdom required them by themselves or their Deputs to go about the performance of what is enjoyned to them by the foresaid Act and to return a satisfactory account of their diligence the first day of November thereafter now by-past certifying them if they failed they would be charged with Letters of Horning for the Penalties contained in the said Act and seeing the Sheriffs of the Shires after-mentioned and their Deputs viz. of Argile Renfrew Wigtoun Bute Peebles Selâ—irk Perth Kincardin Aberdene Nairn Sutherland Caithness Berwick â—orâ—ar and Inverness The Stewart of Kirkcudburgh and the Stewart of Orkney have not returned report to the saids Lords of their diligence in the Premisses therefore the Lords do ordain Letters of Horning to be direct against the saids Sheriffs and Stewarts and their Deputs Charging them to meet and to compare the Registers of Hornings Inhibitions Seasins and Reversions in their respective Shires with the Minut-books relating thereto and after Collationing of the same to Subscribe the Minut-books conform to the said Act of Parliament and to make report of their diligence therein to the saids Lords betwixt and the twenty day of February next and likewise Charging them to make payment to Sir William Sharp His Majesties Cash-keeper of the Penalties already incurred by them viz. an hundred Pounds Scots for ilk by-gone Failzie in not meeting and comparing the saids Registers at the times exprest in the said Act of Parliament and that within the space of fifteen dayes after the Charge as to such of the saids Sheriffs and their Deputs who reside upon this side of the River of Spey and upon twenty one dayes as to those who reside benorth Spey ACT concerning Arrestments February 1. 1677. THE Lords considering the great prejudice to Creditors and delay of Justice occasioned by Arrestments proceeding upon Decreets which are not ordinarly loused whereupon Debitors do procure delay of the Decreets at the instance of their Creditors against them before the same be extracted whereby lawful Creditors are hindered in recovering their jâ—st Debts until a several Process of double Poinding calling the Creditors and Arresters to dispute their Rights be raised and determined which if they should come in as distinct Processes by the course of the Roll would take a long time during which the principal Cause behoved to â—ist For remeid whereof the saids Lords do declare that they will receive all double Poindings for purging of Arrestments as incident Processes with the principal Cause without any new Inrolment and do further declare that if the Arrester proceed not in Diligence by an Action for making forthcoming whereby his Debitor may be Certiorat of the Arrestment and may raise double Poinding in the name of his Creditor in whose hands the Arrestment is made that they will grant no delay upon pretence of such Arrestments albeit upon Decreets But that the same shall be purged by Caution to be found by the Creditor to warrand the Debitor at the hands of the Arrester and that upon pretence of the Caution found they will not grant Suspension except upon Consignation after Distress by Decreet Likeas the saids Lords do declare that they will grant no Suspension upon Arrestments laid on after extracting of Decreets whether upon Decreets or Dependences but by way of double Poinding that thereupon both the Creditor and Arrester may be called ACT concerning Advocats Iune 7. 1677. THE Lords having called in the whole Advocats did intimate to them that whereas His Majesty had by a Letter of the 24. of May 1676. required the saids Lords to prevent and punish all Combinations and unwarrantable Correspondences amongst Advocats whereby they may forbear or refuse to Consult or Concur with these who did faithfully adhere to his Majestie 's Service and did continue in or early return to their Station Which Letter immediatly after receipt thereof was publickly read before the whole Advocats notwithstanding whereof some Advocats do refuse or forbear to meet with others of the
Disponed these Lands to the Pursuer with her consent Subscribing the Disposition It was Duplyed The Defenders Subscription and Consent was Extorted metus causa whereupon she has Action of Reduction depending and holds the production satisfied with the Writs produced and repeates her Reason by way of Duply viz. if she was compelled by her Husband it was by just fear because she offered to prove by Witnesses that he threatned her to consent or else he should do her a mischief and that he was a fierce man and had many times beaten her and shut her out of Doors and offered to prove by the Nortar and Witnesses Insert that at the time of the Subscription she declared her unwillingness The Lords found the Defense and Duply Relevant David Wilkie contra Sir Andrew Ker. Eodem die DAvid Wilkie and others Tacks-men of the Castoms Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border Anno 1650. Set by them to him he Suspends and alleadges by the publick Calamity of the English Entry in Anno 1650. in Iuly Traffick was hindered and by the Kings Proclamation against Commerce with these The Charger answered it was a Casuallity ex natura rei and that they had payed without Defalcation and the Suspender had profit in former years The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years Adamsons contra Lord Balmerino Iune 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods now belonging to the Lord Balmerino for the whole Annualrent Balmerino Suspends on these Reasons First The Heretor against whom the Decreet of poinding was obtained and all the Tennents were Dead and therefore it can receive no summar Execution against the present Heretor and his Tennents but there must be a new Decreet against them Secondly Balmerino hath peaceably possessed this Tenement twenty or thirty years and thereby hath the Benefit of a possessory Judgement by which his Infeftment cannot be questioned without Reduction and Declarator Thirdly The Englishes possessed this Tenement several years by the publick Calamity of War and therefore there must be Deduction of these years Annualrents as is frequently done in Feu-duties Fourthly The two Tenements being now in the hands of different singular Successors Balmerino's Tenement can only be poinded for a part of the Annualrent The Pursuer answered that Poinding of the ground is actorialis chiefly against the Ground and therefore during the Obtainers Life it is valued not only against the ground while it belonged to these Heretors and Possessors but against the same in whosoever hands it be that the Moveable Goods therein or the Ground Right thereof may be Apprized To the second Annualrents are debita fundi and a Possessory Judgement takes neither place for them nor against them To the third though in some cases Feu-duties ceass by Devestation that was never extended to Annualrents due for the profit of a Stock of Money To the fourth the Annualrent being out of two Tenements promiscuously The Annualrenter may Distress any part for the whole in whosoever hands the Tenement may be The Lords Repelled all these Defenses but superceded Execution for one half of the Annualrent for a time and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion for his relief medio tempore Wilson contra Thomson Eodem die WIlson having obtained Decreet against Thomson for poinding of the Ground of a Tenement of Land Thomson Suspends on this Reason that the Chargers Infeftment is base and before it was cled with Possession the Suspender was publickly Infeft and thereby excludes the base Infeftment though prior The Charger answered that the Reason ought to be repelled because he had used Citation upon the base Infeftment before the publick Infeftment by which Citation res fuit letigiosa The Lords Repelled the Reason in respect of the Answer and found the base Infeftment validat by the Citation whereupon the Decreet followed Ruthven contra Laird of Gairn Iune 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate reserving his own Liferent after his Sons Death his Oye pursues him for an Aliment out of the Estate conform to the Act of Parliament appointing the Heir to be Entertained by the Donatars to the Ward Conjunct-feears or Liferenters thereof The Defender alleadged absolvitor because the Act of Parliament cannot be extended to his case who voluntarly Infeft his Son in his Estate with the burden of his Liferent Secondly If any Aliment were due the Mother who is Liferenter must bear her part Thirdly Aliment is only due where the Heir hath no other means But here the Heir hath a Stock of Money which though Liferented by his Mother yet he may Entertain himself out of the Stock The Pursuer answered First That the Act of Parliament anent Alimenting of Heirs is generally against Liferenters without exception Secondly The Disposition by the Defender to the Son was for a Tocher worth all the Estate he then had wherefore no part was Liferented by the Son or his Wife the Pursuers Mother but only a sum of Money which came by her self and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment the Defender having now succeeded to a plentiful Estate The Lords Repelled the Defense in respect of the Replyes Mr. David Watson contra Mr. Iames Ellies Eodem die MR. David Watson having acquired Right to the Superiority of Stenhouse milne pursues the Feuers for their Feu-duties who alleadge First no Process the Lands in Question being Kirk-lands Disponed to a Lord of Erection and it is declared that the Lords of Erection having only right to the Feu-duty till they be Redeemed by the KING at ten Years purchase by the Act of Parliament thereanent in Anno 1633. And thereby none have Right but such as subscribed the submission surrendring their Interest in the KING'S hands untill the Pursuer Instruct that his Author did subscribe the said submission he hath no Interest Secondly absolvitor from the Feu-duties 1650. and 1651. Because the Lands were wasted these Years by publik calamity of War Thirdly absolvitor from Harrage and Carrage because all Services are reserved to the KING by the said Act of Parliament The Lords assoilzied from Harrage and Carrage but differed for the Feu-duty being smal and found no necessity for the Pursuer to instruct that this Author did subscribe the Surrender after so long time but that the same was presumed for his so long bruiking the Fee Sir William Wilson contra Sir William Murray Eodem die WIlson having Apprysed Sir William Murrays Estate pursues him and his Tenents for Mails and Duties who alleadged that by the Act
the Right of the Teinds in the Patron in leu of their Patronage and also as he who had Tack thereof and had since possessed be tacit relocation The Defender alleadged as to the first Title that the Parliament 1649. was not only annulled but declared void ab initio as a meeting without any Authority as to the tacit Relocation it could not extend any further then so many years as the Beneficed Person could set It was answered for the Earl that the Rescissorie Act could not prejudge him as to any thing anterior to it's date unless it had born expresly to annul as to bygones The Lords found the Lybel and Reply Relevant as to bygones before the Act albeit there be no salvo in that Act as there is in the Rescissory Acts of the remanent Parliaments and found that the Pursuer had Right per tacitam relocationem till he was interrupted even for years which the Beneficed Person could not validly set as a Liferenters Tack will be validly set as a Liferenters Tack will be valide against the Feer per tacitam relocationem after her Death though she could grant no Tack validly after her Death Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn Eodem die THe Minister of Ednems Relict Insisting for the reparation of the Manss It was alleadged for the Heretors that those who have Right to the Teinds as Tacks-men or otherwayes ought to bear a proportion of the reparation The Lords found that albeit these who have right to the Teinds were accustomed to Repair the of Kirks and the Heretors the rest of the Kirk yet there was neither Law nor Custom alleadged the Teinds could be burdened with any part of the Reparation Sword contra Sword Eodem die ONe Sword as heir Served and Retoured to Bailzie Sword of Saint Andrews pursues for Intromission with the Moveable Heirship for delivery of the same and produces his Service done at Saint Andrews and Retoured whereby he is Served as Oye to the Defunct Bailzie his Father Brother compears another Party who is likewise Served Heir to that same Bailzie at Edinburgh and produces his Service Retoured by which he is served Heir to Bailzie Sword as his Father Brother Son whereupon he hath raised a Reduction in Latine under the Quarter-seal of the other Service which was prior and alleadges that he being in a nearer degree of Blood then the other in so far as he is a Father Brother Son and the other Service bears him to be but a Father Brothers Oye The Lords having considered both the Retoures and that they were not contradictory inferring manifest Error of the Assize because it was sufficient for the Assize to Serve the Father Brothers Oye if they knew of no nearer Degree And also because the Defunct Bailzie might have had two Father Brothers one elder then his Father and the other younger and thereby two Heirs one of Line and another of Conquest which not being clear by the Retoures the Lords will not prefer the first Retour as standing but would hear the Parties upon the Reduction Mr. James Stuart contra Mr. John Spruile Ianuary 21. 1663. MR. Iames Stuart and Robert Stuart Bailzie of Lithgow as Curator to him as a Furious Person or Idiot by Gift of the Exchequer pursues Mr. Iohn Spruile for Sums of Mony due to Mr. Iames. It was alleadged no Process at the Instance of Robert Stuart as Curator because by Law the Tutors or Curators of Furious Persons are conform to the Act of Parliament to be Cognosced by an Inquest whether the Person be Furious and who is his nearest Agnat of the Fathers side past twenty five The Lords found Process Robert Stuart finding Caution to make forth coming and declared it should be but prejudice to the nearest Agnat to Serve according to the said Act of Parliament for they thought that as the Lords might name Curators ad litem in the interim so might the King and that the Exchequer was accustomed to do William Zeoman contra Mr. Patrick Oliphant Ianuary 22. 1663. IN a Competition betwixt Zeoman and Oliphant anent the Estate of Sir Iames Oliphant who having killed his Mother was pursued Criminally therefore before the Justice and being Charged to underly the Law for the said Crime under the pain of Rebellion he compeared not and the Act of Adjournal was declared Fugitive and his moveable Goods ordained to be Inbrought The Criminal Libel proceeded both upon the Act of Parliament against Paricide and also upon the Act of Parliament declaring that killing of Persons under assurance of Trust to be Treasonable Hereupon the King granted a Gift of Sir Iames Forefaulture to Sir Patrick Oliphant who thereupon was Infeft It was alleadged for William Zeoman who had Right by Appryzing that there could be no respect to the Gift of Forefaulture because Sir James was never Forefault but only declared Fugitive and Denunced as said is and that any Doom of Forefaulture had been pronounced the Crime behoved to have been proven before an Assize else there could be no Forefaulture neither could the Donator possess medio tempore till the Crime were yet put to the Tryal of an Assize because Sir Iames is dead The Lords found that the Gift of Forfaultuee could not be effectual for the Reasons foresaid and found that the Act against Paricide could be no foundation of a Gift because it only excluded the Murderer and his Descendents to succeed to the Person Murdered by declaring expresly that the Murderers Collaterals should succeed and so there was no place for the King And as for the other Act of Murder under Trust they found that there being no probation it could work nothing and there is no doubt but though there had been Probation that Act of Murder under Trust doth not directly quadrat to this Case upon that natural Trust betwixt Parents and Children but only to Trust given by express Paction or otherwise it could evacuat the benefit of the foresaid other Act anent Paricide and would prefer the Fisk to the Collaterals of the Murderer if he had done no wrong contrair to the said Act anent Paricide which is not derogat by the other Wallace contra Edgar Eodem die IAmes Wallace as Assigney by Iames Scot to a Decreet obtained against Iohn Edgar in Drumfreis having Charged thereupon Edgar Suspends and alleadges Compensation upon Debts due by Scot the Cedent to the Suspender before the Intimation of his Assignation and therefore according to the ordinary Course Debts due by the Cedent before Intimation are Relevant against the Assigney and condescends upon several Bonds and Decreets against the Cedent assigned to the Suspender before the Chargers Intimation The Suspender answered that albeit any Debt due by the Cedent to the Debitor before Intimation will be relevant to compense against the Assigney yet that will not extend to Sums assigned to the Debitor before the Chargers Assignation unless that Assignation had been
with the Kings Advocats concurse The Defender answered that the Advocats concurse was but ex stilo curiae and he could make no concurse sufficient for any Improbation and Reduction without the Kings special order The Lords found the Defense Relevant and Assoilzied at which time it was remembred that Sir Thomas Hope insisting in an Improbation of his Good-son the same was not Sustained because it wanted the Kings expresse Order Town of Cowper contra Town of Kinnothy Eodem die THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade They Suspend and alleadge that they have the Priviledge of Burgh of Barony in keeping Hostlers and selling Wine The Charger answered that selling of Wine is one of their chiefest and expresse Priviledges The Lords considering that this dipped upon the Controversie betwixt Burgh Royal and Burgh of Barony which has remained undecided these thirty years would not Discusse this particular but found the Letters orderly proceeded in general ay and while the Defenders found Caution to desist from Merchant Trade without determining how far that reached Moffet contra Black Eodem die THere being a Bargain betwixt the said Moffet and Black for some Packs of Plaids by which it was agreed that the buyer for satisfaction of the price should give Assignation to certain Bonds exprest but there was no mention what Warrandice At the Discussing of the Cause the Seller craved absolute Warrandice and alleadged that seing it was not Communed that it should be a restricted Warrandice it behoved to be an Absolute being for a Cause onerous and for the price of the Goods 2ly Seing the Agreement required an Assignation in Writ to Bonds the Buyer might re integra resile seing neither the Plaids nor Bonds were Delivered The Lords found that thē Buyer who insisted behoved either to give absolute Warrandice that the Bond was not only due but should be effectual and the Creditor solvendo otherways they suffered the Seller to Resile especially seing the Bargain was not made first by words Absolute for such a price and afterwards that it had been agreed to give such Bonds for that price In which case the Bargain though verbal would have stood Alexander Falconer contra Mr. Iohn Dowgal Eodem die ALexander Falconer pursues Mr. Iohn Dowgal for payment of 1000. merks left in Legacy by umquhil Iohn Dowgal by a special Legacy of a Bond adebted by the Earl of Murray whereupon he conveens the Earl as Debitor and Mr. Iohn Dowgal as Executor for his Interest to pay the special Legacy The Exceutor alleadged that the sum belonged to him because he had Assignation thereto from the Defunct before the Legacy The Pursuer Answered that hoc dato there was sufficiency of Free-goods to make up this Legacy and albeit it had been legatum rei alienae yet being done by the Testator scienter who cannot be presumed to be ignorant of his own Assignation lately made before it must be satisfied out of the rest of the Free-Goods Which the Lords found Relevant Duke and Dutches of Hamiltoun contra Scots Eodem die DUke and Dutches of Hamiltoun being Charged for payment of a Sum due to umquhil Sir William Scot of Clerkingtoun and assigned by him to his four Children alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents as should be found just not exceeding eight years and therefore there could be no Sentence against him as to that till the Commission had decyded The Pursuers answered that these Annualrents were not due for the years during the time the Duke was Forefault by the English which ended in Anno. 1656. and they insist but for the Annualrents since that year It 's answered for the Duke that albeit he had payed many of these years Annualrents by force of Law then standing yet that could not hinder the Deduction but that he would have Repetition or Deduction in subsequent years The Pursuers alleadged he behoved to seek the Heir for Repetition and could not deduce from them The Lords in respect of the Commission would not Decide nor Discuss the Alleadgence anent the years Annualrent but Superceeded to give Answer till the Commission had determined even till seven years after the Forefaulture to make up these that was payed before In this Process compearence was made for Sir Laurence Scot the Heir and Executor Dative who alleadged that there was 2000. merks of the Sum belonged to him because his Fathers Assignation to the Children contained an express Division of their shares which was so much less then the hail Sum Assigned The Children answered they opponed their Assignation which bare expresly an Assignation to the hail Sum and Bond it self and albeit the Division was short it was but a mistake of the Defunct and cannot prejudge the Assigneys Which the Lords found Relevant George Melvil contra Mr. Thomas Ferguson Iune 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment after the Mothers Decease The Defender alleadged◠Absolvitor because the Defunct was his own Mother and he had no means of his own and it must be presumed that she Entertained him free out of her Maternal Affection and that his Step-Father did the same after he had Married his Mother The Lords sustained the first part of the Defense but not the second anent the Step-father after the Mothers decease Alexander Allan contra Mr. John Colzier Eodem die ALexander Allan pursues Mr. Iohn Colzier to pay a sum of ninety two pounds adebted for the Defenders Mother and that upon the Defenders Missive Letter by which he oblieged him to pay the same The Defender answered absolvitor because by the missive produced he offered him to become the Pursuers Debitor for the sum due by his Mother being about ninety two pounds but by a Postcript requires the Pursuer to Intimat to him or his Friends at Falkland whether he accepted or not which he did not then till after the Defenders Mothers Death and so it being a Conditional offer not accepted is not binding Which the Lords found Relevant and Assoilzied Cauhame contra Adamson Eodem die THomas Cauhame having Appryzed a Tenement in Dumbar from Ioseph Iohnstoun pursues Iames Adamson to remove therefrom who alleadged Absolvitor because this Apprizer could be in no better case then Iohnstoun from whom he Appryzed whose Right is affected with this provision that he should pay 600. pounds to any person his Author pleased to nominat Ita est he hath Assigned the Right to the Defender so that it is a real Burden affecting the Land even against this singular Successor and included in his Authors Infeftment The pursuer answered that albeit it be in the Infeftmen yet it is no part of the Infeftment or real Right but expresly an obliegment to pay without any Clause Irritant or without declaring that the Disponers Infeftment should stand valid as to the Right of that Sum. The
answered many exceptions though they bear not so expresly yet they are rather Declaratory of a Right then in being then statutory introducing a new Right The Lords found Singular Successors free and reduced the Decreet pro tanto Earl of Lauderdail contra Wolmet Eodem die THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet against Major Biggar who alleadged absolvitor because the Lands of Wolmet were Valued and approven The Pursuer replyed that the said Decreet of Valuation was improven by a Decreet of Certification obtained there against at the instance of Swinton having Right to these Teynds for the time by a Gift from the Usurper The Defender duplyed that no respect ought to be had to the said Certification First because this Pursuer derives no Right from Swintoun being only restored to his own Right and Swintouns Right from the Usurper found null so that as the Pursuer would not be burdened with any Deed of Swintouns to his prejudice neither can he have the benefit of any Deed of Swintouns to his advantage 2dly The said Certification was most unwarrantable in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds the Defender was not oblidged to produce it but the Pursuer ought to have Extracted it himself 3dly All Parties having interest were not called to the said Certification viz. Mr. Mark Ker the Wodsetter by a publick Infeftment in whose Right Major Biggar now Succeeds And last the Defender alleadged that he had a Reduction of the Certification upon Minority and Lesion and the unwarrantable Extracting of it The Pursuer answered to the first that seing Swintoun did use the Pursuers Right all reall advantages which were not Personal but consequent upon the Real Right and which belonged not to Swintoun personaliter but as prerended proprietar do follow the Real Right it self and Accresce to the true Proprietar as if he had acquired a Servitude or had reduced the Vassalls Right â—b non solutum canonem To the Second oppones the Certification wherein compearance was made for Wolmet and three Terms taken to produce and no such Defense was alleadged as that the Valuation was in a publick Register To the Third the Pursuer needed not know the Wodsetter because it was an Improper Wodset the Heretor Possessing by his Back-bond as Heretable Possessor seing the Decreet of Valuation was at the Heretors instance it was sufficient to Reduce it against his Heir for it would not have been necessar to have called the Wodsetter to obtain the Decreet of Valuation but the then Heretable Possessor so neither is it necessar to call the Wodsetter to the Reducing or improving thereof To the last no such Reduction seen nor ready neither the Production satisfied The Lords Repelled the Defense and duplyes in respect of the Certification which they found to accresce to the Pursuer but prejudice to the Defender to insist in his Reduction as accords and declared that if the Defender used diligence in the Reduction they would take it to consideration at the conclusion of the cause Balmirrino contra Sir William Dicks Creditors Iuly 14. 1664. JAmes Gilmor for the use of the Lord Balmirrino being Infeft in the Lands of Northberwick upon a Right from Sir Iohn Smith who had Right from Sir William Dick pursues the Tennents for Mails and Duties Compearance is made for Sir Williams other Creditors Wodsetters and Appryzers who alleadged absolvitor because the Pursuers Right is Extinct in so far as Balmirrino being Debitor to Sir William Dick and charged by him had acquired this Right from Sir Iohn Smith to compence Sir William and did actually compence him by alleadging the same reason of Compensation producing the Disposition then blank in the Assigneys name whereupon the Letters were Suspended Simpliciter aud my Lord assoilzied and the Disposition given up to Mr. Alexander Dick which is instructed by the Testimony of William Douny Clerk at that time Balmirrino answered First That William Dounys Testimony could not make up a Minute of Decreet where there were no Process nor Adminicle to be seen 2dly Though the minute of the Decreet were lying before the Lords not being Extracted the Lord Balmirrino might passe from his Reason of Compensation and take up his Disposition which is always permitted before Litiscontestation or Decreet and Litiscontestation is never accounted untill the Act be Extracted So that there being no Act of Litiscontestation Extracted in the said Process but only an alleadged minute of a Decreet without an Act neither Partie might resile 3dly Though the Suspender might not resile Simpliciter yet it is still competent to him to propone a several reason of Suspension before Extract being instantly verified and now he propones this Reason that the Debt awand by him to Sir William Dick is a publick Debt and the Parliament has Suspended all execution thereupon till the next Parliament which by consequence liberats him from making use of or instructing his Reason of Compensation The Creditors answered it was most ordinar for the Lords to make up Minuts by the Testimonies of the Clerks when they were lost So that William Douny being a famous Clerk his Testimony must make up the Minute after which the Lord Balmirrino cannot resile from his Reason of Compensation or take back the Disposition seing it was his own fault he did not Extract it and cannot make use now of a Supervenient Exception that was not at that time Competent in prejudice of their Creditors Balmirrino being now in much worse condition The Lords found that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation and take up his Disposition seing it did not appear that the Process was miscarried through Balmirrino's fault or that the Disposition was delivered to Mr. Dick neither of which did appear by William Dounys Testimony Thomas Crawfoord contra Prestoun Grange Iuly 15. 1664. THomas Crawfoord as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof who Suspended upon this Reason that these Lands were a part of the Patrimony of the Abbacy of New-botle which Abbacy was of the Cistertian Order which Order did injoy that Priviledge that they payed no Teynds for their Lands while they were in their own Labourage or Pastourage of which Priviledge not only the Abbots but after them the Lord New-botle and the Defender hath been in Possession and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh in Anno 1587. For the Teynds of the Lands of Newbotle upon the same Defense was Assoilzied which Decreet standing must be sufficient to the Defender ay and while it be reduced likeas the Defender stood Infeft in the saids Lands by the King with express Priviledges decimarum more solito The Charger answered
amongst themselves how dangerous it were if the Creditors or Persons intrusted obtaining Infeftment of an intrusted Estate the Back Bond of Trust being personal would not exclude them and albeit the Person intrusted were not solvendo as in this Case the Intrusted Estate as to the Heirs and Creditors would be inavoidablie lost And some being of opinion that a Personal Exception upon a Back Bond could not be competent to burden or qualifie a real Right or an Action for obtaining thereof But the most part were of opinion that albeit the Right if it were compleat would be real yet this Action for obtaining thereof is but Personal for real Actions are such only which proceed upon real Rights and against the Ground such as upon Annualrents and therefore this being a Personal Action might be excluded or qualified by a Personal Exception upon the Back Bond. And therefore they Adjudged with the Burden of the Back Bond. Earl of Sutherland contra Hugh Gordoun December 1. 1664. THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal that his Right being holden Feu two terms has run into the third and thereby the Right is extinct not only by the Act of Parliament but by a particular Clause in the Defenders Infeftment at least in the Disposition whereupon his Charter and Seasine proceeds There is also called an Apprizer who alleadged that he being a singular Successor and a stranger to his Authors Rights during the Legal unexpyred is not oblieged to possess and cannot omit his Right by his Authors fault or by his own Ignorance The Lords having considered this Case and reasoning amongst themselves upon the difference of a Clause Irritant in an Infeftment Feu and the benefit of the Act of Parliament they found that if the Pursuer insisted upon the Act of Parliament the Defender might purge the Failzie by payment at the Bar but if he insisted upon the Clause in the Infeftment it behoved to be considered whether that Clause was in the real Right by the Charter and Seasine either specially or generally under the provisions contained in the Disposition Or if it was only in the Disposition In which case though it might operat against the Vassal or his Heirs yet not against the Appryzer unless the Seasine had been immediatly upon the Disposition In which case the Disposition serves for a Charter And therefore ordained the Pursuer to condescend and it is like that in favours of the Appryzer being a stranger they would suffer him to purge at the Bar utcunque in this Cause it was not found necessar to cite all Parties at the Mereat Cross albeit the Letters bear so Veatch contra Paterson December 2. 1664. PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause that the Tennents should be relieved of all publick Burdens and having left the Land in 1653. two or three years thereafter he raised a Pursuit against Paterson the Heretor for payment to him of all the publick Burdens he had payed out and renews the same Pursuit and produces the Receipts of the publick Burdens and alleadges that there was a Penalty in the Tack of an hundred pound that he should Possesse Veatch at the Entry of the Tack wherein he failzied The Defender alleadged that it must be presumed that all the Tickets and publick burden was allowed in the Rent or otherwise past from by the Pursuer seing he voluntarly payed his hail Rent Or otherwise all the publick burdens in Scotland payed by Tennent may infer a Distress upon their Masters to repay the same The Pursuer answered that that presumption could not take away his Writ viz. the Tickets produced but if the Defender gave Discharges he ought to have made mention of the allowance of the publick Burdens therein The Lords having considered the Case as of Importance for the preparative found the Defense upon the Presumption Relevant unless the Pursuer instruct by Writ or the Defenders Oath that these Tickets were not allowed in the Rent And as for the Penalty the Lords found that it ought to be restricted to the damnage and that the same was not now probable otherwise then by the Defenders Oath Iames Wilson contra Alexander Home of Linthill Eodem die JAmes Wilson having pursued Alexander Home of Linthill as Sheriff of the Shire for the Debt of a Rebel whom he suffered to Escape In which this Defense was found Relevant that the Rebel in the taking had wounded these that were taking him and had Escaped vi majore The Laird of Clerkingtoun contra The Laird of Corsbieâ— December 3. 1664. SIr William Dick having Appryzed some Lands holden of the Town of Irving and charged the Magistrates to receive him The Laird of Corsbie having Compryzed the same Lands some dayes after was received by the Town the next day after Sir Williams Charge and about a Month after Sir William was also Infeft Clerkingtoun having Right from Sir William pursues Corsbie First for Mails and Duties Corsbie was found to have the benefit of a possessory Judgement by seven years Possession and thereupon was Assoilzied Now Clerkingtoun insists in a Reduction on this Reason that he having first Appryzed and Charged the Superiour they Colluded with the Defender and gave him a voluntar infeftment the next Day after his Charge and therefore his Infeftment though after ought to be drawn back to his Charge and Diligence and he preferred The Defender answered that the Reason ought to be Repelled because the weight of the Reason is the Pursuers Diligence and the Superiours Collusion which hold not because all the Diligence Sir William Dick did was the first Charge upon the Letters of four Forms which bear only with Certification that in Case of Disobedience Letters of Horning would be direct simpliciter and this is no more then a Premonition and put no Obligation upon the Superiour until the second Charge which was Horning Neither did Sir William ever insist any further then the first Requisition The Lords found that the first Charge was sufficient in this case where the Superiour gave an Infeftment before the Expyring of the first Charge and before the second Charge could be given and thereby that a Superiour might prefer an Appryzer though posterior to a prior do what Diligence the prior could But they found that seing Sir William Dick had been silent until his Legal Reversion was Expyred and had not challenged the Defender who was in Possession and thereby had Excluded him from the benefit of Redemption competent to him if he had been found to be but the second Right within the Legal Therefore the Lords found Sir William Dicks Appryzing Redeemable by Corsbie within year and day after the Sentence Mr. Iames Hutcheson contra Earl of Cassils Eodem die MR. Iames Hutcheson having Charged the Earl of Cassils for his Stipend The Earl Suspends and alleadges first that the Charger had no right to the Whitsonday Term 1663. because
the exception of the Act Salvo Jure Scot of Thirlston contra Scot of Braidmeadow Eodem die SCot of Thirlston having right to the Teynd of midshef and pursues the possessor for 24. Years bygone and in time coming who alleadged absolvitor because these Teynds are allocal to the Church coâ—â—orâ— to a Decreet of locality produced bearing such a Stipend and locatting so much of it and for the restâ— that the Minister had the Teynds of midshef It was alleadged that this could not instruct that those whole Teynds were allocal but so much as made up that rest and the Teynd is worth twice as much and therefore the Minister had but the twenty Lamb for the Teynd which is but half Teynd and was lyable to the Pursuer for the rest It was answered that Teynds are secundum consuetudinem loci and if Tyends had never been payed none would be due and if the twenty Lambs was all ever payed they could be lyable for no more The Lords found that before the intenting of the cause they would not allow any more nor then what was accustomed to be payed unless the Pursuer offer him to prove that there was a Tack or use of payment of more which they would allow accordingly Sir William Thomson contra Town of Edinburgh February 14. 1665. THe Magistrats of Edinburgh having deposed Sir William Thomson Town Clerk from his Office on this ground That a Tack of the new Imposition and Excise being set to their Tacks-men which was to have been subscribed by him as Clerk for the Deacons of the Crafts he had given it up to the Tacks-man and had not taken their subscription thereto neither to their own double nor taken another double for the Town albeit the Tack duty was fourscore thousand merks yearly for two years and that it being an uncertain casuality the value of it was most difficult to prove and not but by the Tacks-mens own Oath Sir William raised Reduction on several Reasons especially that the sentence was unjust in so far as it was the puting on of an exorbitant and incommensurable punishment of deprivation from an Office of so great Value upon a Fault of meer negligence or escape and that before the Sentence the Tack-dutie was all payed but four monethes and now all is payed and that Sir William was still willing for to have made up the Towns damnage It was answered that here was no Process to put a punishment commensurable on a Fault but Sir William having by the free Gift of the Town had so profitable a place for his life upon consideration of his Fidelity and Diligence there is implyed in it as effectualy as if exprest that it is ad vitam aut ad culpam so that the cognoscing of the Fault is the termination of the Gift freely given so if their be a fault Justly found by the Town they might well take back their Gift they gave upon that condition implyed for it was not the loss in eventu nor dolus in proposito that made such a Fault else all negligences imaginable would not make it up though a Servant should leave his Masters House and Coffers open if nothing happened to follow yet the Fault was the same and could not be taken away by making up the damnage but here was a Fault of knowledge and importance for Sir Wilâ—iam could not by meer negligence nor ommission give away the Tack to the Tacks-men and neither see them subscribe their own double or any other nor subscribe himself this Fault was likeas in his Office he had a particular gratuitie as Clerk to the excise The Lords repelled the Reason of Reduction and found the Sentence not to be unjust upon this ground because they thought that Sir William being a common Servant who by his Act of admission had specially engadged never to quarrel the pleasure of the Magistrats they as all Masters have a latitude in cognoscing their Servants Faults wherein though they might have been wished to forbear rigor yet having done it by their power as Masters over their Servants The Lords could not say they had done unjustly but found that the committing such a Fault terminat their free Gift being of knowledge and importance but found that if it could be proven that the Tack was duelie subscribed and lost thereafter which was not of knowledge but of meer omission incident to any Person of the greatest diligence they would not find that a sufficient ground to depose him Bishop of Dumblain contra Earl of Cassils February 15. 1665. THe Bishop of Dumblain pursues the Earls Tennents for the Teynds of the Abbacy of Corâ—regual as a part of his Patrimony annexed thereto by the Act of Parliament 1617. The Defender alleadged no Process till the Act of Annexation being but an Act unprinted were produced 2ly Absolvitor because the Defender had Tacks from the King in Anno 1641. And by vertue thereof was in possession and could pay no more then the Duties therein contained till they were reduced It was answered to the first it was nottour and if the Defender alleadged any thing in his favour in the Act he might extract it 2ly The Defender could not claim the benefit of his Tack 1641. because the Bishops are restored to all they possessed in Anno 1637. And so not only Right but Possession is restored to them as then which is as sufficient an interruption by publick Law as if it were by Inhibition ot citation Which the Lords found relevant being in recenti after the Act and never acknowledged by the Bishops Boyd of Pinkill contra Tennents of Cairsluth Eodem die PInkill as Donatar to the waird of Cairsluth pursues removing against the Tennents whose Master compears and alleadges that the Gift was to the behove of the Minor his Superiour who as representing his Father and Guidsire was oblidged in absolute warrandice against Wairds per expressum THe Lords considering whether that could be understood of any other Wairds then such as had fallen before the warrandice or if it could extend to all subsequent Wairds of the Superiours Heir and so to non-entries c. which they thought hard seing all holdings were presumed Waird unlesse the contrary appear and the Superiour could not be thought to secure against subsequent Wairds unlesse it were so specially exprest all Wairds past and to come Yet seing it was found formerly that if the Superiour take such a Gift and be bound in warrandice that the same should accresce to the Vassals paying their proportional part of the expense and composition they found the Defense that this Gift was to the behove of the Superiour relevant ad hunc effectum to restrict it to a proportional part of the expense Hellen Hepburn contra Adam Nisbit February 16. 1665. HEllen Hepburn pursues Adam Nisbit to remove from a Tennement in Edinburgh who alleadged absolvitor because he had a Tack standing for Terms to run It was replyed that the Tack bore expresly if two
warrandice of an Assignation made by the said Collonel to Sir Arthur dowglass of whittinghame The Defender alleadged absolvitor because the Assignation was only made in trust which he offered to instruct by many Adminicles of which these were the chief that by the Witnesses adduced it was cleared that this Assignation remained in the hands of one Cranstoun who was filler up of the date and Witnesses therein that it was never delivered to Whittinghame and that the Right Assigned was still retained by the Collonel who thereupon obtained two Decreets before the Lords and uplifted the Money from Sir William Thomson Debitor Cranstoun who keeped the Assignation being an Agent in the house never questioning the same nor Sir Arthur or any of his owning the same for the space of 20 year till of late Kingstoun gave 300. merk to get the Assignation out of the hands of one Ienkin who got it from Cranstoun and that the Money was to have been presently imployed for the levying of Souldiers for a French Regement whereof Fullertoun was Collonel and Sir Arthur Livetenant Collonel there were also two Letters of Sir Arthurs produced by the Collonel acknowledging the trust thereof the one was alleadged to be holograph but nothing adduced to prove the same but three other writs subscribed before Witnesses for comparing the Subscriptions therein with the Subscriptions of the Letters The Pursuer answered that so solemn a Write subscribed before Witnesses could not be taken away by Presumptions or Witnesses but either by Writ or Oath of Partie and as to the Presumptions adduced there are stronger Presumptions with the solemn Writ then against it Fullartoun a most circumspect man would never have given an Assignation in trust without a Back-bond and that Sir Arthur died shortly thereafter Anno 1642. and Cranstoun died Auno 1645. And Whittinghams Successors were strangers to the business and the missives adduced were not proven holograph and were suspect The Lords found the Defense founded upon the foresaid adminicles relevant and proven and therefore assoilzied Sir George Mouat contra Dumbar of Hembrigs Eodem die SIr George Mouat as Assigney to a Tochar of 5000 merk whereunto umquhile Dumbaith was contracter pursues Hemprigs as representing him for payment The Clause of the Contract bore That the Husband should have the Tochar out of the first and readiest Goods of the wifs Father and that he should have Annualrent therefore but did not expresly oblidge Dumbaith to pay and therefore he is not lyable personally unless he had intrometted with the Defuncts means The Lords found the Defender lyable seing the Clause being in re dotali it behoved to be interpret cum effectu and if it did import only a consent not to hinder the Husband it signified nothing and because in Cases conceived passivè where it does not appear who is oblidged the Contracter is understood oblidged Campbel contra Campbel Eodem die A Wife pursuing her Father in Law for imployment of her Tochar conform to her Contract He alleadged absolvitor because the Clause bore expresly that so soon as the Tochar was payed compleatly he should imploy it and so much more for the Wifs Liferent use so that unless it were shown that the Tochar was compleatly payed he was not oblidged The Pursuer answered that she was not oblidged to pay the Tochar but her Father and if any neglect or defect were therein it was not her fault but the Defender ought to have done diligence debito â—â—mpore and therefore albeit the Tochar were not payed at least he must imploy his own part proportionable to what of the Tochar he hath received Which the Lords found relevant and if the Pursuer had not restricted her self to that proportion they would have sustained it simply for all the Defnders own part Kennedy contra Weir February 23. 1665. KEnnedy of Auchtifardel having charged William Weir upon a Bond of 300 merk He Suspends and raises Reduction upon Minority and Lesion The Charger answered Minority takes no place where the Minor is in dolo as si minor sein majorem dixerit but in this Bond the Suspender expresly acknowledged himself to be then Major The Suspender answered that eadem facilitate that he was induced to subscribe the Bond he might be induced to insert that Clause which therefore cannot prove unless it were otherways proven that he did induce the Charger to lend him Money on that ground The Lords found his acknowledgement in the Bond was sufficient unlesse he instructed that he was induced to insert that Clause not on his own motion or that the Charger knew that he was Minor or was oblidged to know the same by being his Tutor or Curator or might have visibly known the same by the sight of his age and thought it not reasonable to put it to the Debitors oath to disappoint the Creditor Jack contra Pollock and Rutherfoord Eodem die MArion Rutherfoord Married David Clerk and had no Contract of Marriage with him but he having acquired a little ruinous Tennement took it to her and him in Conjunct-fee and in the time of the Plagueâ— he provided her to the Annualrent of 5000 merk His Heirs raises Reduction of the provision as being in lecto agritudinis after he had keeped his house upon suspition of the plague of which he died It was alleadged for the said Marton that keping the house upon suspition of the plague could not be as in lecto aegritudinis unless it were proven that he was infected with the Desease before the provision was granted 2ly Even in that Case Defuncts are not hindered to give Liferents to their Wives for which there is a natural obligation according to Craigs opinion The Lords repelled the first alleadgence but found the second relevant in so far as might extend to a competent provision to the Wife and therefore having examined many Witnesses hinc inde upon the Estate of the Husband and the Tochar and frugality of the Wife and finding his means did consist in a Tenement worth 500 merk by year beside that inconsiderable Tenement wherein she was Infeft they restricted her Annualrent which came to 300 merk to 123. lib. which was about the Terce of the Tenement albeit Terces of Houses within Burgh are not due In this Process the VVife and her second Husband aâ—d having repaired the other little Tenement which was ruinous and builded it much better then ever it was for which they pursued for the Reparations The Lords found that they ought to have the Reparations decerned not only in so far as is necessary but in quantum the Heir will lucrari by getting greater mail to be payed at the Wifes death she leaving the Tenement in as good case as now it is Sir James Mersser of Aldie contra William Rouan February 24. 1665. SIr Iames Mersser of Aldie as Donatar to the Gift of ultimus haeres of umquhil Iohn Rouan pursues a Reduction of the Retour and Service of William Rouan Served
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
Registration of Seasines there is neither Law nor Favour since for posterior acquirers who might have known the prior Infeftments And therefore in Infeftments of Warrandice Lands the Possession of the principal Lands is accompted Possession of the Warrandice Lands neither is there any ground to oblidge a Person who takes a Feu of Lands to demand a more publick infeftment of the Warrandice Lands then of the principal It was answered that albeit the Narrative of the Statute mention Fraudful alienations yet the dispositive words are General that wherever an Infeftment hath been publick by Resignation or Confirmation and hath attained Possession year and day the same shall exclude any prior base Infeftment attaining no Possession and if the said Act were only to be measured by Fraud then if it could be alleadged and astructed that the first Infeftment though base was for a cause onerous and without Fraud it should be preferred which yet never hath been done And for the Practiques they meet not this Case nor the Act of Parliament because the posterior publick Infeftment had attained no Possession It was answered that now consuetude had both Interpret and Extended the foresaid Act for thereby posterior publick Infeftments though they be not for cause onerous or cled with Possession year and day are ordinarily preferred contrair to the tenor of the Statute and base Infeftments retenta possessione where the obtainer of the Infeftment is negligent are accounted Simulat presumptione juris de jure but where there is no delay nor ground of â—imulation the base Infeftment is preferred whether the posterior publick Infeftment attain Possession for year and day or not The Lords having heard this Case at length and debated the same accuratly amongst themselves in respect they found no preceeding Decision whether base Infeftments of Warrandice where there was possession of the Principal Lands were valid or not against posterior publick Infeftments They found this base Infeftment of Warrandice valid against the posterior publick Infeftment The Infeftment in Warrandice being Simul with the Principal and not ex intervallo and being after the Act of Parliament 1617. but did not decide the Case to be of generall rule for Warrandice ex intervallo before the said Act. Grissell Seatoun and Laird of Touch. contra Dundas Ianuary 11. 1666. GRissall Seatoun and the Laird of Touch younger her Assigney pursues Dundas as charged to enter Heir to Mr. Hendrie Mauld for payment of a Bond of 8000 merks granted to the said Grissall by the said Mr. Hendrie her Son It was alleadged that the Bond was null wanting Witnesses It was Replyed That the Pursuer offered him to prove it Holograph It was duplyed that albeit it were proven Holograph as to the body yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died and so being granted in lecto aegritudinis cannot prejudge his Heir whereupon the Defender has a Reduction It is answered that the Reduction is not seen nor is there any Title in the Defender produced as Heir It was answered that the nullitie as wanting Witnesses was competent by exception and the the duply as being presumed to be in lecto was but incident and was not a Defense but a Duply The Lords Repelled the Defense upon the nullitie of the want of Witnesses in respect of the Reply and found the Duply not competent hoc ordine but only by Reduction and found there was no Title produced in the Reduction Executors of William Stevinson contra James Crawfoord Ianuary 12. 1666. THE Executors of William Stevinson having confirmed a Sum of 3000. and odd Pounds due by Bond by Iohn Ker to the said William and also by Iames Crawfoord who by his missive Letter became oblidged to pay what bargain of Victual should be made between the said Iohn Ker and Iohn Stevinson for himself and as Factor for William Stevinson And subsums that this Bond was granted for a Bargain of Victual It was answered that albeit this Bond had been in the name of William Stevinson yet it was to the behove of Iohn Stevinson his Brother who having pursued upon the same ground the Defender was Assoilzied and that it was to Iohns behove alleadged First That Iohn wrot a Letter to his Brother William to deliver up his Bond acknowledging that it was satisfied and that Iohn having pursued himself for the other Bond granted in place of this The said Umquhil William Stevinson compeared or a Procurator for him before the Commissars and did not pretend any Interest of his own neither did William during his Life which was ten yearsâ— thereafter ever move question of this Bond nor put he it in the Inventar of his Testament though that he put most considerable Sums therein It was answered 1. That the presumptions alleadged infer not that this Bond was to Iohn Stevinsons behove because by Iames Crawfoords Letter there is mention made of several Bargains of Victual both with Iohn and William so that the Bond and pursuite at Johns instance might be for one Bargain and at Williams for another especially seing the Sums differ 2dly Writ cannot be taken away by any such Presumptions It was answered That if the Defender James Crawfoord had subscribed this Bond it could more hardly have been taken away by Presumptions but he hath not subscribed the Bond but only his missive Letter which is dubious whether it be accessory to this Bond or if that Bond was for this Bargain and therefore such a writ may well be â—lided by such strong Presumptions The Lords found the Presumption Relevant and that they instructed the Bond was to Johns behove and therefore in respect of the ahsâ—lvitor at Crawfoords instance they Assoilzied William Dick contra Sir Andrew Dick. January 13. 1666. WIlliam Dick pursues Sir Andrew Dick his Father for a modification of his Aliment whereupon the question was whether Sir Andrew Dick himself being indigent and having a great Family of smal Children and the Pursuer having been Educat a Prentice whether the Pursuer should have a Modification The Lords considering the great Portion the Pursuers Mother brought and that he was a Person of no ability to Aliment himself by his industrie decerned Sir Andrew to receive him in his House and to entertain him in meat and Cloath as he did the rest or else two hundred merks at Sir Andrews option James Crawfoord contra Auchinleck January 17. 1666. THE Heirs of Lyne of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male did thereupon charge the Appearand Heir Male and upon his Renounciation to be Heir obtained Decreet cognitionis causa after which that Appearand Heir dyed and the Decreet being Assigned to Iames Crawfoord Writer he now insists in in a Summons of Adjudication containing a Declarator that he having charged the next Appearand Heir to enter to the last Appearand Heir against whom the Decreet cognitionis causa was
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. â—contra Earl of Kinghorn Ianuary 23. 1666. 〈…〉 having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ— and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
old Act of Parliament Iames 2. bearing that whosoever should compone with a Thief for stollen Goods should be lyable in Theft-boot and punishable as the Thief or Robber He raises Advocation on this Reason that the Act was in desuetude and the matter was of great moment and intricacy what Deeds should be compted Theft-boot whereinto no inferiour Judge ought to decide because of the intricacy It was answered that the Lords were not Competent Judges in Crimes and therefore could not Advocat Criminal Causes from inferiour Courts and the Earl of Murray being Sheriff and having sufficient Deputs both should concur in the careful Decyding of the Cause It was answered that albeit the Lords did not Judge Crimes yet it was competent to them to Advocat Criminal Causes ad hunc effectum to remit them to other more competent unsuspect Judges The Lords Advocat the Cause from the Sheriff and Remitted the same to the Iusticeâ— because of the antiquity of the Statute and intricacy of the Case Lockhart contra Lord Bargany Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick he appryzed but no Infeftment nor Charge followed Thereafter a Creditor of umquhil Sir William Dicks appryzes but before the appryzing Lockhart upon a Debt due by Sir William Dick arrests all sums in my Lord Bargany's hand and pursues to make forth-coming This Lord Bargany takes a Right from the appryzer for whom it was alleadged that he ought to be preferred to the Arrester because the arrestment was not habilis moduâ— in so far as Sir William Dick having apprized for the sum in question the apprizing is a judicial Disposition in satisfaction of the sum and so it could not be arrested unless it had been moveable by a Requisition or Charge It was answered that the Act of Parliament Declaring Arrestment to be valid upon sums whereon Infeftment did not actually follow made the Arrestment habile and the Apprizing can be in no better case then an heretable Bond Disponing an annualrent It was answered that the Act of Parliament was only in the case of Bonds whereupon no Infeftment followed but cannot be extended beyond that case either to a Wodset granted for the sum where the Property is Disponed where no Infeftment had followed or to an Apprizing which is a judicial Wodset pignus pretorium It was answered that the Reason of the Law was alike in both cases to abbrige the Lieges unnecessar Expences by apprizing The Lords preferred the Apprizer Bishop of Glasgow contra Commissar of Glasgow Eodem die THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow and alleadged first that by injunctions related to in the Act of Restitution 1609. It was provided that all Commissars should Reside at the place where the Commissariot Sat and should not be absent but upon necessity and with leave of the Bishop under the pain of Deposition and that in case of the absence of the Commissar through sickness or other necessity or through being declined in these Causes the Bishop should name a Deput From whence it was alleadged first That the Commissar had already Transgressed the Injunctions and deserved Deposition for none Residence and for appointing Deputs himself not appointed by the Bishop yea for continuing to make use of these Deputs albeit the Bishop did intimat the Injunctions to him and did Judicially require the Deput not to sit and took Instruments thereupon 2ly That in time coming it ought to be Deâ—lared that the Commissar ought to Reside under the pain of Deprivation and to Act by no Deput but such as were authorized by the Bishop It was alleadged for the Defender Absolvitor from this Member of the Declarator because the Defender had his Office from the King and the late Bishop of Glasgow with power of Deputation And as to the Injunctions first They had no authority of Law for albeit the Act of Parliament 1609. related to Injunctions to be made yet it did not authorise any Persons to make the same nor is it constant that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly Albeit they had been then so made they are in deâ—uetude because ever since all Commissars have enjoyed their place with power of Deputation and exercised the same accordingly 3ly There is no Injunction against the Bishops giving power to the Commissars to Deput for albeit the Injunctions bear that in such cases he could not give Deputation and therefore the Commissar did not wrong to continue his Deput And it is most necssar that the Commissar should have a Power of Deputation or otherwise their Office is elusory seing the Bishop may be absent or refuse to Depute any Person in case of the Commissars necessary absence and so both delay Justice to the Leidges and Evacuat the Gift It was answered for the Pursuer that first the Injunctions were commonly received and known through all the Kingdom and are Registrat in the Commissars Books of Edinburgh being the Supream Commissariot and according thereto the Lords have decided in Advocations and Reductions and albeit they have not been observed seing there is no contrair Decision they cannot go in desuetude by meer none observance 2ly That the Injunctions do import that no Deputation can be granted by Commissars but only by the Bishops in casibus expressis It is clear from the foresaid two Injunctions for to what effect should the Commissars Residence be required if he might at his pleasure act by Deputs and why were these cases exprest if Deputation were competent in all Cases 3ly Albeit the power of Deputation granted by Bishop Fairfowl be sufficient during his life and seclude him from quarrelling the same personali objectione yet that Exception is not competent against this Arch-bishop 4ly The Injunctions being sent up to the King His Majesty has Signed and Approven the same which therefore Revived them and for the inconveniency upon the Bishops absence or refusal is not to be supposed but that the Bishops concerned in the Commissariots would provide remeid in such Cases The Defender answered that Acts of Parliament were not drawn ad pares casus consequentias much less their Injunctions and though they were now Revived yet that cannot be drawn back to the power of Deputation granted before Neither can this Bishop be in better condition then his Prececessor or quarrel his Predecessors Deed which he had power to do The Defender did also resume the Defense as to sufficiency and tryal that seing he had power of Deputation he was not lyable to Tryal nor to Reside if his Deput were sufficient The Lords found that albeit the power of Deputation should absolutely stand yet the principal Commissar behoved to be be sufficient and ordinarly Resident seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâ—m but in rem creditoâ—is The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the â—â—lture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
far as his Fathers Liferent was reserved thereby and his Father Possessing by vertue of the Reservation did validat his Infeftment 2ly Albert the Fathers own Possession could not be sufficient yet the Father having Transmitted his Right to Watson and Watson Possessing the Suspicion of â—â—mulation ceased and there is a Disposition produced by the Father to Watson which though it bear to be of the Fee yet can import no more but to be of the Liferent seing the Father had no more neither needs it have an Infeftment seing it hath but the effect of an Assignation to a Liferent It was answered that if the Father had expresly assigned his Liferent reserved in the base Infeftment it might have been the ground of a question whether the Assigneys Possessing so would have validat the base Infeftment But since the Father has not taken notice of the Reservation but Dispones as Heretor it clears that he did not Possess by the Reservation but by his own prior Right The Lords found the Reason of Reduction and Reply Relevant and that the Fathers Possessing by himself or Watsons Possessing by himself could not validat the base Infeftment Charles Cass contra Mr. Iohn Wat. Eodem die DOctor Cass having taken Infeftment of an annualrent out of the Lands of Robertland in name of Cockpen and Adam Wat Charles Cass as Heir to the Doctor pursues Mr. Iohn Wat as Heir to his Father for Compt and Reckoning of the Mails and Duties and Charges him with the hail Rental being intrometted or ought to have been intrometted with by him and his Father by vertue of the Trust in their Person and also Adam Wat took a gift of Tutory to the Pursuer and so is lyable as his Tutor The Defender answered that his Fathers Name being borrowed on Trust could lay no Obligation on him to do any Diligence but what he thought fit seing by his Back-bond he was obliged to denude himself whenever the Doctor pleased and the Pursuer has reason to thank him for what he did and not burden him with what he omitted seing he had no allowance therefore and as for the Tutory there was a multiple Poinding all the time thereof depending among five or six Parties pretending Right by the dependence whereby the Tutor was excluded The Pursuer answered that the Defenders Name was not borrowed without his knowledge but that he accepted thereof and entred to Possession and as an Appryzer is not obliged to Possess but if he Possess must be answerable for the Rents of the Lands conform to the Rental so must the Defender The Lords found the Defender not lyable to Diligence by vertue of the Trust albeit he did Possess but Ordained him to Compt for his intromission and to condescend what Diligence his Father did as Tutor that if he be found deficient therein there might be an additional Accompt to what he intrometted with Mr. Iames Cheap contra Mr. Iohn Philip. Decem. 19. 1666. MR. Iames Cheap charges Mr. Iohn Philip to fulfil a Minute of Alienanation of the Lands of Ormestoun sold by Mr. Iames to Mr. Iohn whereby Mr. Iohn was obliged to pay 25500 merks as the price or to assign sufficient Bonds therefore He Suspends and offers to Consign Bonds and amongst the rest a Bond of 8000 merks due by the Town of Edinburgh The Charger alleadged that he was not obliged to accept that Bond because at the time of the agreement and Subscription of the Minut the Charger particularly excepted the Town of Edinburghs Debt and the Suspender declared that it should be no part of the price which he offered to prove by the Writer and Witnesses insert in the Minute The Suspender answered that Witnesses were not competent in this Case where the words of the Minute are not dubious but clear and general of any sufficient Debt for if this were sustained the alteration of the price as well as the manner of payment might be proven by Witnesses It was answered that it was no way alike nothing being here in question but the manner of payment and not the quantity of the price The Lords Ordained the Writer and Witnesses to be Examined before answer Ianet Thomson contra Stevinson Eodem die IN the Reduction on Minority at the Instance of Ianet Thomson contra Stevinson The Lords Ordained the Pursuers Mother to be received Witness of her Age cum nota there being a Testificat already produced and there being 30 or 40 years since the Pursuers Birth after which time it was not likely that others would remember but she was ordained to Deponâ— who were Witnesses at the Birth and Baptism and these to be Examined Corstorphin contra Martines Decem. 21. 1666. JAmes Corstorphin pursues a Reduction of a Disposition made by his Fathers Sister in lecto It was alleadged by Martines to whom the Disposition was made that he could not quarrel the same because his Father to whom he is Heir and the other Brethren and Sisters of the Defunct had approven whatsoever Testament Legacy or Disposition made or to be made by the Defunct of her Goods and Gear Debts and sums of Money and others whatsoever that she had or should have the time of her Decease so that she having made this Disposition he cannot quarrel the same The Pursuer answered First That the Ratification in the Terms foresaid could not be extended to Lands or Annualrents Constitute by Infeftment there being no mention of Lands Annualrents or Heretage therein 2ly It could not be extended to any Disposition but Legally made and therefore not to Dispositions on Death-bed The Defender answered that the Ratification bearing expresly sums of Money did comprehend all sums although Infeftment of Annualrent were granted for security thereof which being but accessory to the sum follows the same 2ly There could be no other effect of the Ratification if it were not to exclude the Heir from quarreling thereof as being in lecto for if the same was made by the Defunct in her leige poustie it were valide and unquarrelable in it self and albeit it bear not mention of Death-bed yet it expresses Disposition of all Goods she should happen to have the time of her Death so that if she had acquired Rights after her sickness contracted she might Dispone the same validly by this Ratification and yet behoved to be on Death-bed The Lords found this Ratificatiou not to extend to sums whereupon Infeftment of Annualrent followed which was carried but by one Vote and so they came not to the second Point William Yeoman contra Mr. Patrick Oliphant Eodem die WIlliam Yeoman having apprized the Lands of Iames Oliphant Son to Sir Iames Oliphant and Mr. Patrick Oliphant having also appryzed the same William insists on this reason that Mr. Patricks appryzing was satisfied by Intromission within the legal Mr. Patrick alleadged that his whole Intromission could not be countable to satisfie his Appryzing because the two part thereof did only belong to his Debitor and the third
to the Tolbooth there to remain during their pleasure and Fined him in 500. Merks Earl of Wintoun contra Gordoun of Letterfary Iuly 15. 1668. THe Earl of Wintoun having Appryzed certain Lands in the North pursues for Mails and Duties It was alleadged for Gordoun of Letterfary that he stands Infeft in these Lands and by vertue of that Infeftment is seven years in Possession and thereby has the benefit of a possessory Judgement and must enjoy the Mails and Duties till his Right be Reduced The Pursuer answered that he had Intented Process upon his Right for Mails and Duties Anno 1658. whereby the matter became litigious and which stops the course of any possessory Judgement till that Citation expyre by the course of 40. years in the same way as it is in Removings or Ejections where Summons once Intented does not Prescribe by three years thereafter but lasts for 40. years The Defender answered that the case is not alike for the benefit of a possâ—ssory Judgement is introduced for the Security of Persons Infeft that they be not summarly put to Dispute their Authors Rights which are oftimes not in their hands but in the hands of their Authors or Superiours and there was never any Reply Sustained against the same unless it were Vitious or Violent or Interrupted but here the last seven years Possession after that Citation is neither Interrupted nor Vitious and these being no stop to take away the Effect of that Citation it were of bad consequence if Persons Infeft 39. years after a Citation behoved Summarly to Dispute their Rights The Lords Sustained the Defense of the Possessory Judgement upon seven years peaceable Possession before the Citation and Repelled the Reply The Pursuer further Replyed that in the seven years after the Citation there were some years wherein there was a surcease of Justice and no Courts in Scotland 2dly The Citation was by his Tutors and Curators and he was minor during the seven years It was answered that a possessory Judgement was competent against minors and there was no respect of minority therein which is only excepted in the great Prescription extinguishing the Right but in the possessory Judgement in Relation to the way of Process and the Fruits in the mean time as in all Prescriptions tempus continâ—um and not tempus utile is respected The Lords also Repelled both these Replyes and notwithstanding thereof Sustained the Exception on the possessory Iudgement Sir William Steuart contra Murrays Iuly 17. 1668. SIr Iames Murray his Estate being Appryzed by many of his Creditors Sir William Steuart one of the Appryzers pursues the rest for Compt and Reckoning of a proportionable part of the Rents in respect that his Appryzing is within a year of the first effectual Appryzing and comes in therewith pari passu by the late Act of Parliament betwixt Dâ—bitor and Creditor It was alleadged Absolvitor First Because the Pursuers Appryzing is incompleat nothing having followed thereupon now these 16. or 18. years and by the Act of the late Parliament anent the Registration of the allowance of Appryzings that is declared to be a necessar Solemnity for all Appryzings led since Iune 1652. and this Appryzing is not yet allowed It was answered that by the late Act of Parliament the Certification of the want of allowance is not that the Appryzing shall be null but that posterior Appryzings first allowed shall be preferred but the Act betwixt Debitor and Creditor brings in Appryzings together deduced within a year according to their Dates without mention of allowance and is posterior to the said other Act and cannot be Derogat from thereby nor does the Act require Infeftment or any thing else but takes away the preference of Appryzings by the former Act as to such as are led within a year The Lords Repelled this Defense and Ordained the Pursuer now to allow his Appryzing which they found sufficient The Defenders further alleadged Absolvitor because the Pursuer had accepted a Disposition from Sir Iames Murray the common Debitor of a Tenement in Edinburgh bearing expresly in satisfaction of his Debt which is now produced by himself The Pursuer answered First That he was excluded from the benefit of that Disposition by Eviction by the Earl of Panmure who Appryzed before he was Infeft 2dly That whatever it bear it was but truely granted for Security for there is produced an Assignation by Sir Iames of certain sums to the Pursuer for the same Debt which could never have been if the first had been made in satisfaction The Defenders opponed the Disposition bearing expresly in Satisfaction the benefite whereof accrescing to them upon the Pursuers Receiving the Disposition cannot be taken from them by any posterior Writ of the Common Debitor nor are they obliged to Dispute whether it was valid or effectual seing it was accepted and the Eviction doth not annul the Acceptance but giveth place to the Clause of Warrandice contained in the Disposition which is Personal and reacheth only the Common Debitor and not the Defenders 2dly It was the Pursuers own fault that he was excluded in not Infefting himself upon his Disposition which he received before Panmuire's Appryzing It was answered that he could not compel the Superiour to receive him and that the Baillies of Edinburgh required bygone Sess and Feu-duties to be payed before he were Infeft which he was not obliged to pay seing by the Disposition he was to be free of all Incumberances It was answered that the Baillies of Edinburgh refuse no body as is known and these Incumberances were but to be purged by a personal obligement of the common Debitors neither did the Pursuer ever give back the Disposition The Lords Sustained this Defense and found the receiving and retaining the Disposition in Satisfaction sufficient to exclude the Pursuer It was further alleadged for Patrick Murray of Deuchar that he has Right to the Lands of Deuchar not only by Appryzing but by a voluntar Disposition whereupon he was Infeft before the Pursuers Appryzing and hath been by vertue thereof in peaceable Possession these 16. years and so hath the benefit of a possessory Judgement and a prior more valide Right It was answered that this voluntar Disposition was granted after the Denunciation of the Pursuers Appryzing after which the common Debitor could not prefer any other Creditor by his voluntar Deed and so the Denunciation making the matter litigious any posterior Possession is Vitious and cannot give the benefit of a possessory Judgement neither is the Disposition being after the Denunciation a valide Right but especially it being considered that the Act of Parliament brings in this Pursuer with the other prior Appryzers as if they had been in one Appryzing and several of the other Appryzings are led and Infeftment thereon before the Disposition The Lords Sustained this Defense and found that the Denunciation did not take away the benefite of a posterior possessory Iudgement Lord Dumfreis contra Smart Iuly 18. 1668.
no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen Lesly
having Fraughted a Ship belonging to Bailly Guthry in Dundee to carry a Loadning of Wheat and Oats from Athol to Leith the Skipper did put in by the way at Dundee and there the Ship received a Crush by another Ship whereby the Salt-water entered amongst the Victual and thereupon the Owners and Skipper caused Disloaden the Victual and put it up in Lofts and Bailly Guthry the next day after the Crush gave notice to Robert Lesly in Dundee Lauchlens Correspondent and who made the Bargain for him to make it known to Lauchlen what had befallen the Ship and Loadning who within two dayes after came to Dundee and was required to Receive the Victual which he refused and by the Probation adduced in this Cause it was found that it was the Skippers Fault that he had put in to Dundee and so he and the Owners were found lyable for the damnage and interest of the Merchants and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled and the Owners should be lyable for the Price of the whole as it would have given at Leith if the Skipper had keeped his Course deducing the Price of the sufficient Victual as it now gives and a Commission being granted to certain Persons in Dundee to visit the Victual and to see what condition it was in they reported that 36. Bolls of it was sufficient Mercatable Wheat and that the Oats was damnisied in 20 Shilling the Boll and as to the rest two reported that it would yet be Brisket for Ships or Houshold Servants and two reported that it was spoiled but spake nothing further The question arose to the Lords upon the Commission at the Advising thereof whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant or for the damnage that ensued thereafter because the Victual being laid together without separating the wet from the dry had het and spoiled thereafter and if it had been separat at first the damnage would have been very litle and so the question was whether the Owners and Skipper were obliged to have separat the wet from the dry and so to have offered it to the Merchant or if the offer in general to the Merchant to receive the Victual was sufficient though he did not desire them to separat the wet from the dry or that they did not offer satisfaction or security for the damnage of what was wet The Lords found that seing the damnage had fallen after and through the occasion of the Skippers delay he and the Owners were obliged to separat the wet from the dry and to have used diligence to prevent future damnage wherein having failzied they found them lyable for the whole damnage both before and after the offer the next question arose was whether the Skipper and Owners were obliged to take the spoiled Victual and pay the Price thereof as if it had been sufficient or if the Merchant was obliged to take it and the Owners to make up the damnage The Lords found that seing the Victual remained yet in specie and was not wholly Corrupted but by the report appeared to be useful for Ship Brisket and seing the property thereof still remained in the Merchant and the Owners were only lyable for damnage They ordained the Merchants to Receive the wet Victual and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith if the Voyage had held The Countesse of Cassills contra The Earl of Cassills February 22. 1670. BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady he is obliged to Infeft her in certain Lands with absolute Warrandice and obliges him that the Lands did pay then and several years before 6000. Merks of yearly Rent beside Kanes and Customs and over and above Teinds and Feu-duties and if it shall please the Lady within six Moneths after the Earls Death rather to choise six thousand Merks of free Rent then to retain the Possession of the Land and to give a Tack to his Heirs and Successors of the Liferent-lands Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly Therefore the Countesse has made it in her option and offers to take and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent who alleadged that albeit that Clause be mentioned to be free Rent yet he must have allowance of Cess Maintainance and other publick Burdens because by free Rent can only be understood free of Teinds and Feu-duties in respect that this being a Tack-duty for the Liferent-lands the Lady thereby can be no further free then if she enjoyed the whole Lands which the Earl is only obliged to make worth 6000. Merks of yearly Rent over and above Teind and Feu-duty but neither does it bear generally of free Rent much less of publick Burdens and therefore the subsequent Clause for the Tack-duty albeit it bear free Rent yet it can only be understood to be free of Teind and Feu-duty and not to be free of publick Burden which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent or Tack-duty belonging to them in Liferent unlesse they were expresly freed of Maintainance It was answered for the Countess that she oppones the Clause of her Contract bearing free Rent without â—â—nitation and Contracts of Marriage are to be extended in favours of Women and as to the Act 1646. the same is Repealed and not Revived again The Lords found that by the Contract of Marriage the Countesse was noâ— free of Cesse and Maintainance which were the only Points at Inâ—â—â—â—cutor But if any Debate arose concerning the ordinarâ— Taxation or the Outrikes or allowance to Militia Horse the Lords would hear the Parties thereanent and accordingly the next day found the Clause did free my Lady of the ordinar Taxation Militia and so much of the Cesse as the Tennents of the Lands payed to my Lord. Murray of Achtertire contra Sir Iohn Drummond Eodem die THe Deceast Earl of Tulliâ—airn having Wodset the Lands of Logy-Almond to William Murray of â—chtertire by a Contract of Wodset in February 1656. by which the Earl Assigns Achtertire to the Mails and Duties of the Lands due for the Cropt 1656. at Whitsunday or Martimess or any other Term and obliges him to Deliver to him the Keyes of the House and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name because the Reversion did not extend to the Earls Assignies and having obtained Declarator Decerning Achtertire to denude himself of the Lands who in obedience of the Decreet grants a Renunciation Reserving to himself the
permitted to alleadge the Lands in question to be Part and Pertinent of his other Lands whereof he shew a full Progress and alleadged a continual Possession by doing all Deeds of Property that the Subject was capable of and the Pursuer alleadging that these Lands were severally kend and known from all the Defenders Lands contained in the said Progress and that he and his Predecessors had exercised all acts of Property that could be done in the case of a Forrestry such as the Lands in question were and that after the Defenders alleadging on a several Infeftment by the foresaid Seising and so acknowledging these Lands to be separâ—â—â—m tenâ—mentum he could not return to alleadge Part and Pertinent so considerable a tract of Ground six or seven Miles long yet the Lords would prefer neither Party to the probation but before answer ordained either Party to adduce Witnesses anent their Possession and the several specialities by them alleadged that by the probation the Lords might see the just Interest of either Party which might resolve into a promiscuous Commonty or into a Property to the one and a Pasturage or other Servitude to the other Marion Dods contra Lawrence Scot. Feb. 16. 1671. BY Contract of Marriage betwixt Iames Scot and Marion Dods Marion is obliged to pay in Tocher a thousand pound to the said Iames at the next Candlemass and the said Iames is obliged to imploy the same to him and her in Conjunct Fee and to the Heirs of the Marriage which failzing to her Heirs and Iames having Died without Children the said Marion pursues Lawrence Scot as his Heir to imploy the Sum conform to the said obligement who alleadged Absolvitor because the Pursuer has yet the Tocher in her own hand unless she can show a Discharge It was answered First That the Parties having lived together 22. years it must be presumed that the Husband was payed and had the Custody of the Discharge 2dly The Husband by his Testament acknowledges that the Sum was payed It was answered that this written Obligation cannot be taken away by such a presumption and the Assertion of the Defunct in the Testament has been procured by the Wifes importunity in her Husbands weakness and however cannot prejudge the Heir and can import no more then as legatum liberationis which can only affect the Deads-part of the free Geir The Lords found the presumption with the acknowledgement in the Testament a sufficient payment of the Tocher against all Parties having interest William Gordon contra Sir Alexander Mcculloch of Ardual February 17. 1671. WIlliam Gordon as Donator to the Recognition of the Barony of Cardines by allienation of the Major part thereof pursues a Declarator of the Recognition against Sir Alexander Mcculloch who stands now Infeft therein who alleadged no Process because the Pursuer produces no Charter to show the Lands to hold Waird neither doth he produce the Infeftments Libelled by which the Recognition is alleadged to be procured and if he shall get a Term to prove and so Litiscontestation be made the Defender will either be excluded from his Defenses which he cannot propone or know before he see the Infeftments or otherwise two Litiscontestations may be in the same Cause by admitting of exceptions after the Term and albeit these Infeftments be not the Pursuers own Writs yet he ought to have used an incident upon his Summons to have compelled the Havers to produce the same and so before Litiscontestation the Defender might have proponed his Defense It was answered that the Pursuer is obliged to produce no more in initio litis then his Gift of Recognition from the King for the Law presumeth that the King is Superior and that the Lands are Waird unless the Defender offer to prove the contrare As for the Infeftments whereby Recognition is incurred they are not the Pursuers Title but media concludendi which he may produce ad modum probationis The Lords Sustained the Process and assigned a Term to prove the Infeftments Libelled for inferring the Recognition and reserved all the Defenders Defenses after the production thereof in the same manner as if they were now produced Mrs. Katharin Mcgil contra The Viscount of Oxenfoord Eodem die THe Deceased Viscount of Oxenfoord having named his Son Executor and universal Legator he gives a Bond of Provision to umquhile Mistrisse Mary one of his Daughters in satisfaction of her Portion natural and Bairns part there are yet three Children beside the Heir and the said Mrs. Mary did survive her Father and in the Compt and Reckoning of his Executory the three surviving Children claimed half of the Moveables as the Bairns part It was alleadged for the Viscount the universal Legator that a fourth part of the Bairns part behoved to belong to him which would have belonged to Mrs. Mary because the Bond granted by the Defunct being in satisfaction of Mâ—ries Bairns part her Bairns part must come in place of it and not accresce to the rest of the Bairns but must belong to him as Executor and universal Legator especially this Bond being granted on Death-bed is only effectual as a Legacy whereby the Defunct did burden his own Deeds part which can be no otherways understood then thus that he would make up Maries Portion to ten thousand Pounds her Bairns part being in the first end thereof and it cannot be thought his meaning to exhaust his Deads part further or to gift any thing to the rest of the Bairns by the accrescence of Maries part It was answered that such Bonds of Provision are most ordinar bearing it to be in satisfaction of their Bairns part which has ever been so interpret that the Portion of the Bairn so satisfied accresceth to the rest of the Bairns and it was never heard that the Heir or Executor burdened with such Bonds of Provision did thereupon recur to seek that share of the Bairns part which was satisfied by the Bond of Provision neither is there any odds whether the Provision were by Legacy or Bond for the Reason of recourse being because the Heir or Executor is burdened to satisfie that Bairn and so in either case doth claim the share of that Bairn neither was it ever so understood that Fathers granting such Bonds of Provision did not thereby leave intire the Bairns part to the remanent Bairns The Lords found that Mrs. Maries share of her Bairns part did accresce to the rest of the Bairns and did not belong to the Executor either as a part or in place of any part of the ten thousand pound but the samine did solely burden the Deads part Agnes Dundasse contra The Laird of Ardrosse and the Laird of Touch. February 18. 1671. THe Laird of Ardrosse having granted Bond to umquhile Mr. Henry Mauld and his Spouse and their Heirs of 8000. Merks and after his Decease he granted a Bond to the Relict bearing to have borrowed two thousand Merks from her and obliging him to pay the
whole production is specially insert It was answered that the Requisition was truly produced and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof It was answered that albeit in favorabilibus the Lords may supply Defects upon Production ex post facto yet in odiosis such as Clauses irritant of Reversions the Lords ought not to admit the same The Lords found the Decreet of Declarator null Sir David Dumbar of Baldoun contra David Dick and others February 22. 1671. BAldoun pursues â—he Tennents of Bombie for Mails and Duties Compearance is made for David Dick who produced an Apprizing of the saids Lands against the Lord Kirkcudbright within year and day of the Pursuers Appryzing and craves to come in pari passu with the Pursuer conform to the Act 1661. anent Creditor and Debitor It was answered that by the same Act it is provided that where Comprizings are acquired by the appearand Heir or to his behove that the same should be satisfiable for such Sums as the appearand Heir payed and offers to satisfie the same It was answered that albeit the Act doth so provide as to the Estate that might belong to the appearand Heir it can extend no further But this Appryzing is not only of the Estate of Orchartoun but of the Estate of Kirkcudbright wherein Sir Robert Maxwel appearand Heir of Orchartoun hath no interest the Appryzing must be valide as to that It was answered that Kirkcudbright was but Cautioner for Orchartoun and that the Act bears that such Appryzings shall be satisfied by what the appearand Heir payed and such Appryzings being satisfied it is simply extinct and can have no effect Which the Lords found Relevant and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother the Lords allowed Witnesses ex officio to be adduced for proving that it was for Sir Roberts behove William Gordoun contra Sir Alexander Mcculloch Eodem die WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns Who alleadged Absolvitor because the Defender having right by Appryzing to the Lands whereon the Corns grew did warn the Pursuer and obtained Decreet of Removing against him and thereupon dispossessed him and finding the Cropt upon the Ground he might lawfully intromet therewith nam sata cedunt solo especially where the Sower is in mala fide but here he was in Violence after a Warning and did continue to Sow after Decreet of Removing yea a part was Sown after he was Dispossessed by Letters of Ejection The Pursuer answered that by the Law and Custom of Scotland the Cropt of Corns or industrial Fruits are never accounted as pars soli or any accessory but are still moveable even when they are growing so that they belong not to the Heir but to the Executor and in case of a Disposition without mention of the Cropt albeit the Acquirer were Infeft after they were Sown and upon the Ground he would not have Right thereto neither doth mala fides or violent Possession alter the case for which the Law hath provided a special Remeid viz. the violent Profits but it can be no ground to meddle with the Parties Cropt brevi manu as accessory to the Ground for then the Parties should both lose the Cropt as pars soli and be lyable to the violent profits neither is there any Ground from the Warning nor yet from the Decreet of Removing which was Suspended before it attained full effect and the Defender continued in Possession of a House upon the Ground albeit he was put out of the principal House It was answered that the Decreet had attained full effect before the Suspension all the Pursuers Goods being off the Ground and he out of the Mansion-house wherein the Defender entered and brought all his Goods upon the Ground and though the Pursuers Mother being a valitudinary impotent Woman was suffered to remain in a Coat-house and the Pursuer with her upon that account that imports no continuance of Possession of the Land The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession reserving to him the violent Profits for that time But found the Defense Relevant as to what the Pursuer did after the Defenders Dispossession and found the Defender only lyable for the Expences of the Labouring and the Seed as being eatenus Locupletior factus Lord Iustice Clerk contra Mr. Iohn Fairholm February 23. 1671. THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks and having Infeft him in an Annualrent out of his Lands in security thereof Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent which was holden of the Earl of Levin himself who was Charged upon the Appryzing but unwarrantably to Infeft Fairholm in the Lands whereas the Annual rent only was Appryzed and the Charge should have been to Infeft Fairholm in the Annualrent thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands and after all did upon a Decreet against Lambertoun arrest the bygone Rents in Levins hand and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn the Justice Clerk as Donator to the Liferent and as Arrester competing with Fairholm did alleadge that Fairholms Appryzing being an incompleat Diligence and no Infeftment nor valide Charge thereon and having lyen over so many years the Arrester must be preferred for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown where it was so found and albeit Fairholm be the prior Arrester yet he hath done no Diligence upon his Arrestment whereas the Justice Clerk hath obtained Decreet and as Donator to the Liferent Escheat he is preferable for years after the Rebellion because the Liferent Escheat falling before any Infeftment or Charge on the Appryzing which was not used within year and day the Liferent excludes the Appryzer The Lords found the Appryzing preferable to the posterior Arrestment though no legal Diligence was done thereon for the space of nine years thereafter in respect the Appryzing being a Judicial Assignation required no Intimation and being prior it is preferable and they did not respect that single Practique the constant Custom since being contrary But found the Liferent Escheat preferable to the anterior Appryzing being without Infeftment or Charge as to the years after the Rebellion and preferred the Appryzer as to years preceeding Arnold of Barncaple contra Gordoun of Holm Eodem die THere being four Cautioners in a Bond and the principal Debitor having Suspended and found a Cautioner in the Suspension who having been Distressed and payed the Debt and having gotten Assignation from the Creditor Charges one of the Cautioners in the first Bond Gordoun of Holm who Suspends on this Reason that payment being made by the
Cautioner in the Suspension he can only have recourse against him for whom he was Cautioner but not against his Cautioners in the principal Bond for us to them it is all one as if the principal Debitor had payed 2dly Though the Cautioner in the Suspension could have access against the Cautioners in the principal Bond yet all of them being Cautioners for the same Principal they must bear equal burden and so he must allow his own fifth part in the same manner as Cautioners in a Bond of Corroboration bear equal burden with the Cautioners in the principal Bond. The Lords found that the Cautioner in the Suspension had access against the Cautioners in the principal Bond he alwayes deducing his own fifth part Earl of Northesk contra Viscount of Stormond February 28. 1671. THe Earl of Northesk pursues the Viscount of Stormond on this Ground that he having sent 100. pound Sterling to London to the umquhil Viscount of Stormond to be imployed for Houshold Furniture the most part thereof was not imployed and for instructing his Libel produces several missive Letters of the Viscounts one Holograph another having an Holograph Postscript and a third Written with another hand which did state the Accompt and acknowledged the Debt It was alleadged for the Defender that the only Letter which had any special Probation in it was the last which is not Holograph It was answered that the Subject Matter being a Sum sent for Furniture which uses not to be redacted in Writ the Viscounts Letter Subscribed by him though not Holograph is sufficient to prove for Bills of Exchange so Subscribed or Letters among Mâ—â—chants are sufficient and this Letter being amongst Noble Persons in such a small particular which requires not ordinarly Writ must be of the same force especially seing there is also produced two other missives not controverted which comparatione literarum are clearly the same with this Letter in question The Lords found that this Letter though not Holograph was a sufficient Instruction having compared the same with the other not controverted Subscriptions The Pursuer making Faith that this is the same Letter which he received from the Deceast Viscount his Servant or Messenger Steil contra Hay of Rattray Iune 6. 1671. UMquhil Steil having a Feu of some Aikers of the Barony of Rattray Chancellour Hay as Superiour and Baron of the Barony pursued Reduction and Improbation against Steil and other Vassals and in Iuly 1624. obtained Certification the Chancellours Right being Transmitted to Doctor Patrick Hay he accepts of the Feu-duty and gives a Discharge of the year 1624. and thereafter in Anno 1628. having obtained Decreet of Removing against Steils Relict he by a Transaction with her passes from it and gives her other Lands in lieu thereof but without any mention of the Improbation Steils Heir attains Possession of the saids Aikers of Land and Hay of Rattray as now having Right to the Barony pursues a Removing against Steils Tennent and obtains Decreet of Removing without Calling Steil whereupon Steil pursues Ejection and Intrusion against Hay of Rattray wherein in respect that Rattrays interest was by a Sentence though unwarrantably given without Calling the Tenuents Master The Lords restricted the Letters to Re-possession and ordinar profits wherein it was alleadged for Rattry Absolvitor because the Defenders Author having obtained Certification in the Improbation at Chancellour Hays Instance produces the same which did evacuate the Pursuers Fathers and Predecessours Right The Pursuer Replyed First That the Decreet of Certification produced was not Relevant because it was not a Certification in an Improbation which was not concluded by the Summons as they are exprest in the Decreet which bear That the Writs called for should be cancelled and declared null but bears not that the same should make no Faith or should be declared as False Forged or Feinzied 2dly Doctor Hay the Defenders Author by accepting of the Feu-duty for a Term after the Decreet did pass therefrom and did acknowledge and Homologate the Pursuers Right and did acknowledge the Liferenters Right by Excambion therewith The Defender answered that he opponed his Decreet of Certification the Decernator whereof is expresly in the Terms of an Improbation And likewise the beginning of the Libel being both at the Chancellour and Kings Advocats Instance and at the Compearance the Pursuer insisted for improving the Writs called for so that the Repetition of the Conclusion of the Libel hath been only through Inadvertence not fully set down And as to the Discharge of the Feu-duty First It is Vitiat in the Date 2dly It wants Writer and Witnesses and albeit it were Holograph it cannot instruct the true Date and it can never import a passing from the Improbation further then for the Term Discharged especially seing it was granted by Doctor Hay who was singular Successor to the Chancellour and perhaps knew not of the Improbation The Pursuer answered that the Certification being granted in absence the Obtainer thereof might frame it as he pleased but it cannot be supposed to be truly better then as it stands and though Improbations being in absence are very much adhered to yet they are odious Rights and very Reduceable upon any Defect or Informality seing it is formality that gives them all their strength And as to the Discharge the Date of it hath been altered at the Subscription by the Subscribers hand as appears by comparing the Date and Subscription 2dly In the very Body of the Discharge no ways altered it bears to Discharge the year 1624. after the Certification and the Discharge as it stands is in the ordinar way as Discharges uses to be given to Tennents and Vassals for small Feu-duties and therefore must be sufficient in a case so favourable for the Pursuer who has a clear Right and should not be eleided by this dubious Certification which must be restricted to a Certification in a Reduction which is only Reducing the Rights till they be produced and so falls they being now produced The Lords Repelled the Defense upon the Certification in respect of the Reply and Discharge produced and Decerned the Defender to Re-possesse the Pursuer but Assoylzied him from the bygone Profits seing he Possest by a Title and had just Reason to Defend in a matter so dubious Sir William Stuart of Kirkhil contra Sir George Mckenzie and Kettlestoun Iune 8. 1671. SIr William Stuart as Heir by progress to Sir Lewis Stuart his Goodsire pursues Improbation of a Bond bearing to be granted to Mr. Iohn Stuart of Kettlestoun his Son granting an Annuity of 3000. merks yearly during his life and some other Provisions Which Bond is Assigned by Keitlestoun to Sir George Mckenzie and being produced Kettlestoun has abidden by the same and has declared upon Oath that he was not present when it was Subscribed but that he received it from his Father as now it is one of the Witnesses insert being then Kettlestouns Servant depon'd that the Subscription to
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with 〈…〉 It hath been looked upon as the priviledge of Judgesâ— to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâ—eth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
also because their Service the only ground of the Decreet was Reduced in Anno 1656. wherein there was an Act of Litiscontestation now wakened The Defender alleadged he got wrong in the said Act because he having proponed a Defense upon the Pursuers behaving themselves as Heirs no wayes acknowledging their Minority he alleadged they behoved to prove the Reason as well as the Exception seeing they were both consistent yet the Act ordained him to prove his Defense of behaviour but did not ordain them to prove their Minority The Lords found this alleadgence relevant It was further alleadged that the Reduction of the Pursuers retour is not competent against this Defender to Reduce his Decreet because the said Reduction was long posterior to his Decreet and he was not cited to the Reduction The Pursuers answered they needed call none to the Reduction of of their Retour but the Judge and Clerk and Inquestâ— and though the Defenders Decreet was anterior they did not know the same having been obtained when they were within twelve years of age and never charged thereupon before the Reduction of their Retour and so they never knew it nor were oblieged to know it The Lords repelled this Defense and sustained the reason of Reduction unless the same were elided by the said Defense of behaving as Heir Thomas Iack contra Fiddess Eod die EODEM die Thomas Iack pursues Fiddess alleadging that Fiddes having given him in custody the sum of five hundred merks in Anno 1650. by a Ticket produced bearing To be keeped by him with his own upon the Deponers hazard and that the Pursuer for his security did thereafter go to Dundee and took his Goods thither where he lost the said sum and all his other Goods by the English taking the Town by storm and plundering it yet Fiddess conveened him before the English Officers at Leith who most unjustly decerned him to pay the sum and put him in Prison till he was forced to give Bond for it and thereafter payed it unto this Defender his Assigney who concurred with him and knew the whole matter and now craved repetition condictione indebiti The Defender alleadged Absolvitor because the Pursuer made voluntar payment and so homologat the Decreet and never questioned the same till now The Pursuer answered it was no homologation nor voluntar he being compelled to grant it and expected to remeid from the English Judges with whom the Officers had so grear power neither could this be counted any Transaction seeing the whole sum was payed nor any voluntar consent nor homologation being to shun the hazard of Law So that though these Officers had been a Judicature if in obedience to their Sentence he had payed and after had Reduced the Sentence he might have repeated what he payed much more when they had no colour of Authority The Lords Repelled the Defense of Homologation It was further alleadged for the Defender Absolvitor because he offered him to prove he required his Money from the Pursuer before he went to Dundee and got not the same and it was his fault he took it to Dundee being a place of hazard The Pursuer replyed that after the said Requisition he made offer of the Money and Fiddes would not receive the same but continued it upon his hazard as it was before The Lords Repelled the Defense in respect of the Reply and because the Defense and Reply were consistent ordained the Parties to prove hinc inde the Pursuer his Libel and Reply and the Defender his Defense Weymes contra Lord Torphiohan Iuly 25. 1661. LADY Mâ—ray Iean Elizabeth and Katharine â—â—ymes pursue the Lord Torphichane alleadging that their Deceased Sister Dam Anna 〈◊〉 having a Wodset of 20000. Merks upon the Barrony of Errot granted a Bond of Provision thereof to her Daughter Iean Lindsay thereafter Lady Torphichane and to the Heirs of her Body which failzing to return to the saids Pursuers with an obliegement that her said Daughter should do nothing to prejudge the saids Heirs of Tailzie which Bond was delivered by the Earl of Weymes to the Defender then Husband to the said Iean Lindsay who oblieged himself to make the same forth-coming to all Parties having interest as accords Yet thereafter during the Marriage the said Iean Lindsay entred Heir to her Mother and she and the Defender uplifted the Wodset sum passing by the Bond of Provision which sum being in place of the Wodset and unwarrantably uplifted by the Defender contrair the Bond of Provision known to himself which he was oblieged to make forth-coming he ought to refound the sum The Defender answered that the Libel is no wayes relevant for if his Deceast Lady Iean Lindsay being Feear of the Wodset did uplift the same and contraveened the Bond of Provision nihilad eum who is but a singular Successor having Right from his Lady by Contract of Marriage whereof there was a minute at the time of his Marriage expresly disponing this sum without any mention â—â—knowledge of the Bond of Provision and albeit he knew the fame after his Right nihil est And as for his Ticket it can work nothing though the Band of Provision were now produced it being but a Personal Oblidgment can oblidge none but his Ladies Curators or Successors and if they will alleadge that he is either Heir or Successor Relevant and his Ticket to make it forthcoming as accords nihil novi Iuris tribuit The Pursuer Replyed That albeit a singular Successor for an onerous cause might have uplifted the Wodset and been free yet the Defender being as the same Person with his Ladie and having no onerous cause but his Contract of Marriage wherein there was a plentiful Tochar of 20000. lib. provided to him besides this and having known the Band of Provision before the uplifting of the Sum and so particeps fraudis he is lyable to make the Sums received by him forthcoming by the Act of Parliament 1621. And also by the Common Law in quantum est accratus alterius dispendio The Lords found the Lybell and Reply relevant and approven and therefore decerned Torphichine to refound the Sum. William Ker contra Parochiners of Cardine Iuly 26. 1661. WILLIM KER as Executor confirmed to Umquhile Mr. Andrew Ker his Father pursues the Minister and Parochiners of Cardine for intrometting with his Fathers Steipend of the Kirk of Cardine in Anno 1652. and 1653. And for the Annatine 1654 Because his Father died on the 22 of November 1653. The Defenders alleadged absolvitor because he being Collegue Minister placed with the Defuncts consent and the Defunct being Suspended by the Presbetrie he got Right to these Years Stepends and obtained Decreet against the Heritors and uplifted conform and so was bona fidei possessor cum titulo 2. He offered him to prove by an Act of Presbytrie that at the time of his entrie he was provided to eight hundred merks of the Defuncts Steipend by the Defuncts own consent And as for the
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
that the naked Office of Executry doth not compleat the Right in the Executors Person and doth not transmit yet it is as true that by the Law of God and of this Land which is cleared by the express Statute Parliament 1617. anent Executors Children surviving their Parents had always a distinct Right from the Office of Executry of their bairns part of gear which belonged to them without any Confirmation and could not be prejudged by the Defunct and was sufficiently established in their Person jure legittime if they survive their Defunct Parent especially if they owned the same by any Legal Dâ—ligence Therefore after which if a Child die the Child of that Bairn will come in with the Survivers and yet there is no Right of Representation because Iure legittime it was established in the Bairns Person by surviving and owning the same as well as the Goods are eâ—â—ablished in the Person of a Stranger Executor by executing the Testament and by the said Act of Parliament that benefit is extended not only as to the Bairns Part but to the Bairns in relation to Deads Part whereinto they succeed as nearest of Kine and therefore they have right to the Moveables not by vertue of the Conformation or Office of Executry which before that Act carried the whole benefit as is clear by the Act but by a several Right jure agnationis as nearest of Kine and therefore though the nearest of Kine be not Confirmed Executor but others be Nominat or Datives Confirmed the Executors are comptable to the nearest of Kine who may pursue them thereforâ— and therefore if the nearest of Kine do any Legal Diligence either by Confirmation or Process yea though they did none but only survive the Right of nearest of Kine ipso facto establishes the Goods in their Person and so transmits and whereas it was alleadged that the contrare was found by the Lords in Anno one thousand six hundred thirty six observed by Durie it is also marked by him that it being so found by Interlocutor it was stopped to be heard again and never discused neither can it be shown by Custome or Decision that the Executors of Children or nearest of Kine were excluded from recovering the part of their Parent which survived and owned the benefit of the Succession The Lords assoilzie from the Reduction and adhered to the former Decreet Kirktouns contra Laird of Hunthil Eodem die ISobel and Kirktouns pursues the Laird of Hunthill their Tutor for a Tutor Compt and payment of all that belonged to their Father who alleadged absolvitor because nothing alleadged nor produced to instruct his acceptance of the Office of Tutory The Pursuers opponned their Fathers Testament Confirmed bearing the same to have been Confirmed by the Defender and other three Tutors and that the Tutors gave their Oaths de fideli administratione in the Office of Tutrie The Defender answered non relevat to instruct that the Tutors made faith because this Confirmation is but the Assertion of a Nottour the Commissary Clerk without a warrant in writ subscribed by the Tutors and can prove in nothing but what is ordinary the Style of the Court in Judicial Process but the Acceptance and making Faith of Tutors is altogether Extranious and is neither necessar nor ordinar to be done by the Commissars The Lords sustained the Reply especially in respect that the Commissarie Clerk was this Defenders Uncle and there was no ground of Suspition that he would adject that point without warrant otherways this were a dangerous preparative Secondly The Defender further alleadged absolvitor from a Sum contained in the said Testament as due to him because there was nothing to instruct it but the Defuncts Assertion in his Testament giving up his Debts The Pursuer answered that the Defender hath Homologat by Confirming the Testament bearing the same and not protesting against it which is an acknowledgment thereof The Defender answered that there being four Tutors it could not be constant that they were all present at the Act of Confirmation and saw and knew the Inventar but as it is ordinar in such Cases they might have come at several times and made Faith The Pursuer answered that some of the four Tutors behoved to do it and these were thereby bound to have done Diligence for it and consequently all the Tuttors being lyable in solidum this Tutor is lyable therefore The Lords found the Reply and Triply relevant that the Testament so confirmed instructed the Debt Robert Lockheart contra William Kennedy February 13. 1662. RObert Lockheart pursues a Declarator of the Redemption of some Lands against William Kennedy of Achtefardel who alleadged absolivtor because before the order was used The Reversion was discharged and the Discharge Registrat The Pursuer Replyed ought to be repelled because the Granter of the Discharge was Interdicted before the granting thereof and the same not granted with the Interdicters consent The Defender answered non competit by way of Reply but only by way of Action of Reduction as is Ordinar in the Case of Inhibition and Interdiction The Lords sustained the Reply in respect that it was not proponed by defense to delay the Pursuite but by Reply which did only delay the Pursuer himself and also that they thought it hard to cause the Pursuer quite his Possession and then go to a Reduction Antonia Birnie contra Liferenters of Rossie Eodem die ANtonia Birnie as Heir appearant and having Right to the Fee of the Estate of Rossie and Fordel pursues her Mother and Grand-father Liferenters thereof for a modification of Aliment The Grand-father made no oppositionâ— It was alleadged for the Mother that the whole Inheretance was not Liferented The Pursuer Answered that what was not Liferented was affected with Apprizings for the Defuncts Debts led after his Death The Defender answered non relevat unless the Appryzings had been before the Defuncts Death but being against the Appearand Heir her self she ought to sell Land and pay the Debt and live upon the remainder The Pursuer offered her to prove the Appryzings and Debts equivalent to the Value of all the Landâ— not Liferented Which the Lords found Relevant Iames Maxwell contra Adam Maxwell Eodem die JAmes Maxwell pursues Adam Maxwell for declaring a Disposition of Lands granted by the said Iames his Wife to the said Adam to have been in trust to her behove and after her decease to her Husband and for adminicle lybelled a Bond granted by the said Adam some Moneths after the Disposition whereby he oblidged himself to grant a Back-bond to the Lady by the advice of Lawyers conform to the Disposition made to him and oblidged him to deliver the said Back-bond to the Lady or to the Ladyes Husband after her Death whereupon it was alleadged that the Back-bond being to be made by the Advice of both their Lawyers the Disposition behoved to be in trust The Defender opponned the Tickit bearing the Back-bond to be conform to the
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
and therefore as is ordinar in all Clauses in relation to Heirs which cannot be effectual if Heirs served be understood their Heirs appearing are understood verba sumenda sunt cum effectu The Lords also Repelled this Defense Thirdly The Defenders alleadged absolvitor Because first Clauses de non alienando are never understood to extend to necessary alienations as for provision of the Feears Wife and Children for Redemption of him from Captivity or any other accident without his Fault Secondly Clauses de non Contrahendo debitum are against Commerce and utterly rejected Thirdly Clauses irritant are resolutive albeit contained in the Infeftment are but personal obliegements and the ground of an Action against the contraveener but if the Contraveener be denuded are not effectual against singular Successors Especially Creditors Contracting bonafide with one standing Infeft before the matter became litigious by Processes upon that Clause seing no Inhibition was used ita est thir Creditors had Apprized and were Infeft before any such Processes upon this Clause or Inhibition used and no personal provision could transmit the Right from Annandale to Stormount upon contraveening the Clausses nor could hinder the transmission thereof from Annandale who had the only real Right to the Creditors by vertue of their Appryzings and Infeftments which denuded Annandale of the real Right and which real Right stands now only in the Person of the Creditors Infeft so that there can be no more in Stormounts Person but a Personal Provision for the being within the body of the Infeftment will not make this Clause real and to affect the Right quo ad singulares successores more then the Clause of Warrandice in the Infeftment which without question reaches not singular Successors and albeit some Provisions in themselves Personal may affâ—ct singular Successors as the Provision that if two years run together the Feu shall become void or the Clauses of Reversion or the Inherent Clauses or quality in Ward holding but these become real by Law and Statute for we have a particular Act of Parliament anent Reversions to be effectual against singular Successors and another anent Feus â—b non solutum canonem and there is no other case that such Provisions are real The Pursuer answered to the fiâ—st albeit alienations do not comprehend judicial Alienations by Appryzing in Recognition and are oftimes not extended to necessar Alienations Yet here the Clause bears expresly not to altenat and also to do no Deed whereby the Laws may be Evicted and Apprized without which the Clauses de alienando were utterly ineffectual and repeats the same to tâ—e second As to the third albeit de facto the real Right be in the Appryzers Infeftment yet it is in them effected with that quality in the condition and bosome of it that gives good ground not only against the Earl of Annandale Contraveener to annul his Right But also the Apprizer in consequence quia resoluto jure dantis resolvitur jus accipientis Especially in Feudal-rights where provisionis investiturae sunt legis feudi as all Feudists agree and therefore all such Pactions and Provisions are equivalent to Law 2d This Clause of the Infeftment is not only resolutive but also is an Interdiction Prohibiting the Feear for the time to alienat or do any Deed prejudicial without consent of such other Persons of the Tailzie were Majors for the time and therefore though the Pursuer should enter Heir to Annandale he might annul these Rights just as in the Case of an Heir of an Interdicted Person who may annul all Rights by his Predecessors after the Interdiction The Defenders answered that as to this Point concerning the Interdiction it cannot be effectual because by a particular Act of Parliament all Interdictions are appointed to be published and to be Registrat in the Registers of Inhibitions otherways they are null This Interdiction is neither published nor Registrat in that Register The Pursuer answered it is al 's publick because it is not only in his Infeftment at the great Seal but it is verbatum in the first Seasine and repeated in the Earl of Annandales Retour and Seasine so as that the Creditors ought to have considered his condition when they lent him Money and known that he was Infeft otherwise their mistake though it might be alleadged to be bona fidae yet if Annandale hade never been Infeft their bona fides would have wrought nothing seing therefore they did it on their peril unless they knew he was Infeft and they could not know he was Infeft by inspection of his Seasine or of the Register but they behoved to know this Clause which is verbatum in it The Lords did also Repel this Defense and Duply in respect of the Reply and Triply and found the resolutive Clause effectual against singular Successours especially considering it was so publick and verbatim in the Seasine and that it was equivalent to an Interdiction Thirdly The Defender further alleadged absolvitor because the pursuer hadâ— behaved himself as Heir to the Earl of Annandale by Intromission with the Mails and Duties of the same Lands The Lords Repelled this Defense because the Pursuer having intented Declarator against Annandale in his own life they thought the provision was equivalent to an Interdiction which purged that passive Title Creditors of Kinglassie February 27. 1662. IN the Competition betwixt the Creditors of Kinglassie mentioned the former Day the Dispute anent the base Infeftment made publick by the poinding of the Ground so long before the Term of payment being reasoned before the Lords in presentia they sustained the same as before Marjory Chalmers contra William Dalgardno Eodem die MArjory Chalmers pursues William Dalgardno as vitious Intromettor with a Defuncts Goods to pay his Debt who alleadged absolvitor because the Rebel died at the Horn and so had no Goods Secondly The Defender hath the gift of his Escheat and also is Executor Creditor Confirmed to him Thirdly The Defender had a Disposition of all the Defuncts Goods albeit he possessed not thereby during his Life yet he might Enter in possession after his Death and not be vitious Intromettor The Lords found this Defense Relevant to elide the passive Title but prejudice to either Party to Dispute their Rights as to the simple avail of the Goods and they Repelled the first Defense and found the second and third Defenses Relevant only if the Gift was before the Intenting of this Cause William Hamiltoun contra Mcfarlane of Kirktoun February 28. 1662. WIlliam Hamiltoun pursues Iames Mcfarlane of Kirktoun as Successor titulo lucrâ—â—ivo to his Father to pay his Debt who alleadged absolvitor because he was not alioqui successurus in respect that at the time of the Disposition he had and hath an Elder Brother who went out of the Countrey and must be presumed on life unless the Pursuer will offer to prove that he was Dead before this Disposition so that at the time thereof the Defender was not
appearand Heir alioqui successurus because vita presumitur The Pursuer answered the Defense was not Relevant unless the Defender would be positive that the time of the Disposition his Elder Brother was on life especially seing he had been out of the Countrey twenty years and was commonly holden and repute to be Dead The Lords sustained the Defense that the Elder Brother was on life the time of the Disposition and reserved to their own consideration the Probation in which if the Defender proved simply that his Brother was actually living the time of the Disposition there would remain no question and if he prove that he was living about that time they would consider whether in this Case the presumption of his being yet living should be probative Paâ—rick Herron contra Martein Stevenson Iune 17. 1662. PAtrick Herron having obtained Decreet of Removing against Martein Stevinson he Suspends on this Reason that the Decreet was not upon Litiscontestation but a time being Assigned to the Suspender to find Caution for the violent Profits and he failing was Decerned without being admitted to any Defense and now alleadges that he ought not to remove because he obtained Decreet of Adjudication of the Lands in question against the common Author and thereupon charged the Superiour long before the Chargers Decreet of Adjudication or Infetment The Charger answered that the Reason ought to be Repelled because the Decreet was given against the Defender compearing and failing as said is Secondly The Charger stands Infeft upon his Adjudication The Pursuer was never Infeft neither did he use all Diligence to get himself Infeft not having Denunced the Superiour and in case he had Suspended Discussing the Suspension The Lords found the Reason Relevant and Proven and Suspended because they found no necessity for an Appryzer to use further Diligence against the Superiour then the Charge of Horning unless the Superiour had Suspended both and that in competition the other Party had done greater Diligence Earl of Marischal contra Charles Bray Iune 18. 1662. THe Earl of Marischal having obtained Decreet in his own Baron Court against Bray compearing for a years Rent of his Maines of Dunnottor herein he had been possest by the English Bray Suspends and alleadges compensation upon a Bond assigned to him due by the Charger who answered competent and omitted and so not receivable in the second Instance especially being Compensation which by special Act of Parliament is not to be admitted in the second Instance The Lords Sustained the Reason of Compensation and found that a Baron Court was not such a Iudicature as that Alleadgences competent and omitted that should be Repelled in the second Instance Mr. Iohn Wallace contra Forbes Iune 19. 1662. RObert and William Forbeses and Heugh Wallace being bound in a Bond as Co-principals Heugh Wallace being Distressed for all consigned the Sum to this Chargers Son Forbes Suspends on this Reason that there is no Clause of Relief in the Bond and Wallace being Debitor in solidum and having gotten Assignation confusione tollitur obligatio The Charger answered that though there was no Clauses of Relief hoc iâ—est where many Parties are bound conjunctly and severally that each is oblieged to relieve others The Lords Repelled the Reason of Suspension for the Suspenders part and found them lyable therefore but not for the other Co-principal Parties Isobel Drummond contra Iean Skeen Eodem die ISobel Drummond pursues Iean Skeen as behaving her self as Heir to her Brother Iames Skeen by uplifting the Mails of the Lands wherein he Dyed Infeft to fulfill her Contract of Marriage with Iames. The Defender alleadged absolvitor because the uplifted those Duties by vertue of her Infeftment being Served Heir to Iohn Skeen Son to Iames Skeen the Pursuers Debitor who was Infeft not as Heir to his Father Iames but as Heir to her Good-sire The Pursuer answered in respect to the Defenders Seasine or to Iohn Skeens which were evidently null seing Iames Skeen was Infeft and so John could not pass over him to his Goodsire and if any regard were to such Infeftment it would open a Door to all Fraud and abstracting of Defuncts Creditors Evidents The Lords found the Defense Relevant to purge this viticus passive Title seing the fâ—â—â—zie was not in this Defender but in John Skeen his Brother Son but prejudice to Reduce as accords but ordained her to Renunce to be Heir to James that Adjudications might be obtained Mr. Alexander Vernor contra George Allan June 24. 1662. MR. Alexander Vernor as Executor to Mr. David Calderwood Charges George Allane to pay a part of the Defuncts Stipend as he who intrometted with the Teinds of the Lands lyable therefore whereupon he had obtained Decreet The Suspender alleadged that the Decreet was in absence and any intromission he had was only as a Merchant having bought from Sir Alexander Auchmutty the Heretor to whom he made payment bona fida before any Arrestment or Pursuit against him The Charger answered non Relevat because the Suspender is oblieged to know that by Law the Teinds are lyable for the Ministers Stipend Secondly He offers him to prove that the Suspender did not make his Bargain for so many Bolls of Victual but that he took Disposition of the Corns ipsa corpora before they were drawn The Lords found the answer Relevant to elide the Reason and found the Defender lyable for the tenth part of the Cornes he bought Robert Hay contra Hoom of Blackburn Eodem die RObert Hay Tailzior pursues Hoom of Blackburn as representing his Father upon all the passive Titles to pay a Debt of his Fathers The Defender alleadged absolvitor because there was nothing produced to instruct the Debt but an Extract out of the Register bearing the Bond to have been Registrated by his Fathers consent whereas it is nottour and acknowledged by the Summons that his Father was Dead long before the Date of the Registration The Pursuer answered the Extract is sufficient to instruct the verity of the Bond being in a publick Register of the Session alb it the Defunct was Dead the time of the Registration which might have been the Creditors mistake and cannot prejudge them seing vitapresumitur especially now when through the loss of the Registers principal Writs cannot be gotten The Defender opponed his Defense and the Decisions of the Lords lately in the like case concerning the Earl of Errol because nothing can instruct against any man but either a Writ Subscribed by him or the Sentence of a Judge upon Citation or consent and this is neither The Lords refused the Extract simply but ordained the Pursuer to condescend upon Adminicles for instructing thereof either by Writ or Witnesses who saw the Bond c. of Woodhead contra Barbara Nairn Eodem die WOodhead pursues Barbara Nairn for the Mails and Duties of certain Lands The Pursuer alleadged absolvitor because she Defender stands Infeft in Liferent of these Lands It was Replyed The Defenders Husband
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ— Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ— that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
also produced three Contracts betwixt umquhil Lambertoun and Kennedy at Striveling upon the ninth of August 1651. by the last of them Kennedy was oblieged to deliver Lambertoun the Bonds for such several Sums he obtaining the Lady Levins consent of all these the Writer and Witnesses were dead and the Date proven to be false In this Process the Lords having considered all the indirect Articles of the Improbation in respect that these Writs in question were never in the alleadged Creditors hands and that there was not one Witness that did Depone that either they remembred to have Subscribed any of these Writs themselves or that they saw either the Parties or any other of the Witnesses Subscribe or any thing communed done or acknowledged by either Party contained in the Writs and that the Subscription of Watson one of the Witnesses in all the Bonds was by comparison with other contraverse Writs about the same time altogether unlike his Subscription and that the Word Witnesses adjoyned to the Subscription of all the VVitnesses did appear to be so like as written with one hand They found sufficient ground to Improve the foresaids writs besides many pregnant presumptions from Kennedies inclination and carriage which being extrinsick were accounted of less value and yet the astructions aforesaid and presumptions on that part were so strong that several of the Lords were unclear simply to find the Bonds false but not authentick probative writs VVilliam VVachope contra Laird of Niddrie Iuly 15. 1662. THe said VVilliam VVachope pursues Niddrie his Brother to pay him eleven pound Sterling for many years which he promised to pay him by a missive Letter produced bearing a Postscript of that nature The Defender alleadged absolvitor First because the Postscript is not Subscribed and so no sufficient Instrument to prove Secondly there is no ground for eleven pound Sterling yearly therein because the words are I have sent you five pound ten shillings Sterling now and I have sent you five pound ten shillings Sterling at VVhitsonday and you shall have as much as long as you live if you carry your self as ye do now which words as long as ye live cannot be understood Termly but yearly nor can relate to both the five pound ten shillings Sterling but only the last to which is adjected Donations being of strick Interpretations Thirdly The words foresaid cannot import a Promise but only a Declaration of the Defenders resolution to continue the same free kindness to his Brother which resolution he may recal at any time Fourthly The Promise is conditional quamdiu se bene gesserit wherefore the Defender can be the only Interpreter and declares that since his Brother hath not carried himself so well the meaning of such words being only this If so long as in my opinion you carry your self so and not according to the opinion of any other The Pursuer to the first Defense opponed the Letter which is holograph and albeit the Postscript be after the Subscription yet seeing it can have no other construction then to be done as a part of the Letter and not as other unsubscribed Papers whereanent it is presumed the VVriter changed his mind and left them imperfect and unsubscribed which cannot be here seeing the Letter was sent To the second he opponed the terms of the Letterâ— To the third alleadged omne verbum de ore fideli cadit in debitum and by these words can be understood nothing else but a Promise which is ordinarly made in such terms The Lords found not the first Defense Relevant per se but found the remnant Defenses Relevant and assoilzied VVilliam Swintoun contra Iuly 18. 1662. THe said VVilliam Swintoun having used Inhibition against at the Cross where he lived she falls Heir thereafter to another Person and immediatly Dispones that Persons Lands whereupon William raised Reduction of that Right ex capite inhibitionis The Defender alleadged absolvitor because the Lands Dâ—poned ly not within the Shire where the Inhibition was used Therefore replyed the Land fell to the Inhibit Person after the Inhibition and the Pursuer did all he was oblieged to do or could do till that time which if it was not sufficient Creditors will be at a great loss as to Lands acquired or succeeded in alter Inhibitions The Lords found the Defense Relevant that the Inhibition could not extend to Lands in other Shires bâ—falling to the Inhibit after quocunque titulo but that the Pursuer ought to have Inhibit de novo or published and Registrat in that Shire seeing all Parties count themselves secure if no Inhibitions be Registrat in the Shire where the Lands ly without inquiring further Lord Frazer contra Laird of Phillorth Eodem die THe Lord Frazer pursues Declarator of Property of the Barony of Cairnbuilg against the Laird of Phillorth as being Infeft as Heir to his Father who was Infeft as heir to his Grand-father who was Infeft upon the Resignation of Frazer of Doors and also upon the Resignation of the Laird of Pitsligo who was Infeft upon an Appryzing led against Doors and also as being Infeft upon an Appryzing at the instance of one Henderson led against Doors and declared that he insisted primo loco upon the two first Rights flowing from Doors and Pitsligo The Defender alleadged Absolvitor because the Defender in an Improbation against the Pursuer and his Father obtained Certification against Doors Seasine so that it being now improven all the Rights Libelled on falls in consequentiam because Doors is the common Author to them all and if he had no real Right all their Rights are a non habente potestatem so that now the Pursuer has no more in his Person but a Disposition made by Phillorth's Grand-father to Doors and a Charter following thereupon and is in the same case as if Doors upon that ground were craving declarator of Property which he could not do nor would the Lords sustain it albeit there were no Defender because that can be no Right of Property where there is no Seasine The Pursuer answered 1. That the Defense is no ways Relevant nor is the Pursuer in the case of a Declarator upon a Disposition or Charter without a Seasine because he produces a progress of Infeftments and is not oblieged hoc ordine to Dispute Doors his Authors Rights as being a non habente potestatem which is only competent by way of Reduction some representing Doors his Author being called 2ly The Defense is no way competent to this Defender unless he alleadge upon a better Right then the Pursuers for the Pursuer hath done all that is requisit to instruct his Declarator by production of his Infeftments and his authors Rights are presumed and need not be instructed and albeit the Defender be called yet he cannot quarrel the Pursuers Authors Right or hinder his Declarator unless he alleadge upon a more valide Right in his own Person 3ly The Defense ought to be Repelled as proponed by this Defender
accordingly It was alleadged he could not have allowance of the sums payed to the Brother and Sister because these could not exclude lawful Creditors It was answered for Mr. William he had payed bona fide a part and had given Bond for the rest and could not now be called in question It was answered he was in mala fide because the payment was made after intenting of the Reduction against his Right at the pursuers Authors Instance Mr. William answered non Relevat unless there had been a Reason Libelled in that Reduction against these Bonds The Pursuer answered it was sufficient that Reduction was used against the whole Right to which any Reason might be added The Lords found this alleadgence not Relevent to put Mr. William in mala fide unless there had been a special Reason of Reduction filled up and shown to Mr. William against these Bonds particularly Margaret Anderson and Iohn Elphingstoun contra Mary Wachop Iuly 22. 1662. MArgaret Anderson and Iohn Elphingstoun as heir to Anderson who were the two Daughters of umquhil Mr. David Anderson of Hills pursues Mary Wachop his Relict and Executrix to fulfil an Article of his Contract of Marriage bearing That if there were no Heirs-male of the Marriage he band and oblieged him and his Heirs-male and Successors whatsomever to pay to the Daughters of the Marriage 3000. merks and craved that the Executrix as representing their Father might pay the same The Defender alleadged Absolvitor because it is clear by the Clausses of the Contract that the Father did not bind himself simply or himself and his Heirs but that he bound only himself and his Heirs-male which is the more clear that the Narrative of that Clause bears because his Estate is provided to his Heirs-male The Pursuer answered he opponed the Clause by which he did not only obliege his Heirs-male but himself and his Heirs-male and so in oblieging himself he hath oblieged all that Represent him and he might have been pursued in his own lifetime if his Daughters had come to the age appointed by the provision 2ly He has not only oblieged himself and his Heirs-male but his Successors whatsomever and therefore his Executors The Lords found that by the Tenor of the Clause and Narrative thereof the Defuncts meaning was chiefly to obliege his Heir-male and albeit Successors whatsomever was added yet by the Narrative and the order of the Words they found the Heir-male was first burdened and behoved first to be discussed Therefore ordained the Defender to condescend what the Heir-male had to succeed to and if he was not Entered Heir-male and had nothing to succeed to as Heir-male they thought the Defender would be lyable William Montgomery contra Theoder Montgomery Eodem die WIlliam Montgomery as Donator to the Escheat of Theoder Montgomeryâ— pursues a general and special Declarator in on Libel and insists first in the general The Defender alleadges Absolvitor because the Horning is null the Denunciation being at the Cross of Edinburgh where the Defender had not his Domicile The Pursuer opponed the Horning standing bearing the Defender to dwell in Edinburgh and the Horning could not be taken away by Exception alibi not instantly veryfied The Lords Repelled the Defense but prejudice of Reduction thereupon Secondly Absolvitor from the Rents and Duties of the Lands of Whyteslaid in time coming because these fell not under single Escheat It was Replyed the Defense ought to be Repelled because the jus mariti falls under single Escheat of the Husband and carrys with it per consequence the Liferent of the Wife The Lords was clear that the Replâ— was Relevant but the Defense not being competent in the general Declarator which was first insisted in they give no Interlocutor on the Reply Lord Frazer contra Phillorth Iuly 23. 1662. IN the Declarator of Property of the Barony of Cairnbulg at the Instance of the Lord Frazer against the Laird of Phillorth It was alleadged for the Defender Absolvitor because the Pursuers Father and Grand fathers Infeftment is upon the Resignation of Frazer of Doors Ita est Frazer of Doors had no real Right in his Person never having been Seased at least there is Certification granted against Doors Seasin in the Improbation at the Iâ—stance of the Defender against the Pursuer and his Father so that Doors having no reall Right his Disposition Instrument of Resignation and Câ—arter granted by the King flowing upon the Resignation of the Laird of Phillorth and the Lord Lovit who had Right to Pttsligo's Appryzing of the hail Estate of Phillorth can give no Right to declare the Property especially against the Defenders who hath a real Right by Infeftment flowing from Phillorth his Goodsyre by Resignation and flowing from the Lord Lovit which albeit posterior yet having the first Infeftment is the first and only Right The Pursuer answered the Defense ought to be Repelled because any Right the Defender hath is from his own Grand-Father to whom he was alioqui successurus and thereby the Defender is Successor titulo lucrativo to his Grand-father the common Author after the Disposition granted to Doors and as umquhil Phillorth Doors Author personali objectione would be excluded from opposing Doors Right of Property which Right he had Disponed to Doorsâ— and was oblieged to warrand no more can the Defender who by this same Right he Defends being successor Lucrative to his Grand-Father be heard to exclude the Pursuer who is Successor to Doors 2ly Albeit there be no Seasine yet umquhil Phillorth and Lovit were fully denuded in favours of Doors by the Resignation made in the Kings hands and Charter conform after which any Right granted by them to this Defender is a non haâ—ente potestatem 3ly Any Right the Defender hath flowing from the Lord Lovit cannot defend him because it was but an Appryzing against Phillorth the common Author and it is offered to be proven that the Appryzing was satisfied within the Legal in so far as the Lands of Innernorth were Disponed by Phillorth and Lovit joyntly to Frazer of Doors for 20000. merks and the Lands of Innerallothy were Disponed by them to Lovits own Sons irredeemable the price of which Lands being 54000. merks was the sum appointed for satisfaction of the Appryzing betwixt the saids Parties and so as to the Lands of Cairnbulg and remnant Lands appryzed the appryzing is extinct The Defender answered to the first that he is not Successor titulo lucrativo to his Goodsyre because the time of the Disposition by his Goodsyre to him and also the time of his Goodsyres death his Father was alive and served Heir to his Goodsyre 2ly There was no Right in his Goodsyre when he Disponed but all the Right was in the Lord Lovit by Pitsâ—igoes Appryzing neither was Lovit denuded by the Resignation or Charter without Seasine so but that the second Resignation with the first Infeftment is preferable 3ly Satisfaction of the Appryzing as it is alleadged is not Relevant unless
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pâ—rties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
Infeftment in Possession 7. years before the warning by vertue of a Gift of ultimus haeres granted by the English Exchequer The Pursuer answered ought to be Repelled because the foresaid Gift is null ipso jure in so far as it is not confirmed by the late Act of Parliament anent judicial proceedings in the Usurpers time wherein Gifts of Bastardy and ultimus haeres were excepted The Defendet answered 1. That his Infeftment being cled with 7. years Possession cannot be taken away by exception neither is he oblieged in hoc judicio possessorio to Dispute the validity thereof 2ly The said Act of Parliament doth not declare it null much less null by Exception such Gifts but doth only not confirm them The Lords Repelled this Defense and found the Infeftment null in it self seing it was not confirmed The Defender further alleadged absolvitor from this warning because the Pursuers Gift is not yet decalred It was answered for the Pursuer no necessity of Declarator because it cannot be ever made appear that any such thing was required or was in Custom and Use more then in the case of a Gift of Ward or a Gift of Forefaultry The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardry William Zeoman contra Mr Patrick Oliphant WIlliam Zeoman as having Right by an Appryzing to the Lands of Newton pursues Mr. Patrick Oliphant to hear and see it found and declared this his Appryzing was satisfied by Intromission with the Mails and Duties within the Legal The Defender alleadged Appryzing cannot be satisfied by his Intromission because any Intromission he had was by vertue of other Rights viz. Mr. Iames Oliphant the common Author having killed his own Mother and thereupon he being declared Fugitive not only upon the Paricide but upon a Criminal Dittie againstâ— him upon committing Murder under Trust which is Treason The Defender obtained Gift of his Forefaultry and thereupon stands Infeft and in Possession The Pursuer answered non Relevat 〈◊〉 Because the Act of Parliament against Paricide doth not declare it to infer Forefaultry but only that the committer thereof should be excluded from Succession and as to the committing of Slaughter under Trust the Act of Parliament expresseth what it meaned by Trust viz. though getting assurance from persons that had been formerly in variance 2ly vvhat ever the cause were yet the Infeftment upon the gift of Forefaultry cannot be respectedâ— unless there had been a Doom of Forefaultry pronunced for all that the Justice General does is to charge the party accused to find Caution to underly the Law and if he appear not he is Denunced Rebel and his Escheat only falls or if having found Caution he appear not in causa he is Denunced Fugitive which hath the same effect but none of them can inter Forfaulture unless Doom of Forfaulture had been pronounced which the Justice doth not but when the Defender compears albeit the Parliament Forefaults persons absent having taken probation of the Libel contra absentes and unless the Justice had either cited the party with Letters of Treason under certification of Treason and that certification had been granted or had cognosced the Crime The Defender being present the Gift of Forfaulture can work nothing The Lords found the Reply Relevant unless the Defender would alleadge as aforesaid because the Defender was not clear in the matter of Fact they before answer Ordained him to produce the Gift and Warrands Creditors of Andrew Bryson contra his Son November 14. 1662. IN an Accompt and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson the Auditor being warranted to call all Parties havers of the said umquhil Andrew his Compt Books before him his Son Mr. Andrew being Called and Examined upon Oath Depones that he neither has them nor had them since the intenting of the Cause but refused to Depone upon his having of the same at any time before or upon his knowledge who had them The Lords having heard the Auditors Report thereanent found that he ought not to be examined upon his knowledge who had them but that he ought to Deponeâ—f at any time before the Citation he had the same and frandfully put the same away quia propossessoria habetur qui dolo possidere Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie Eodem die THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocat and the Lairds of Bightie and Babirnie anent a common Pasturage in the Muire of Bighty lying contigue to all their Lands It was alleadged for Babirny that he ought to be preferred to Mr. Thomas Nicolson and the said Mr. Thomas excluded from all Commonty because Babirny stands Infeft in the Lands of Babirny which infeftment bears with common Pasturage in the Muir of Bighty and Mr. Thomas had no express Infeftment therein It was answered for Mr. Thomas that the alleadgence is not Relevant to exclude him because he his Predecessors and Authors are and have been Infeft in his Lands cum communi pastura and by vertue of the saids Infeftments in peaceable Possession Immemorially or by the space of 40 Years which was sufficient to establish the Right of Communitie with Balbirnie notwithstanding his Infeftment bears express It was answered for Balbirnie that not only was his Infeftment more express but Mr. Thomas Lands and his were holden of divers Superiours viz. Balbirnie of the KING and Mr. Thomas were Kirk-lands and albeit the Muire lyes contigue to Mr. Thomas Lands yet it is not of the same Paroch The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer It was further alleadged for Balbirnie that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled because he offers him to prove that Nicolson was interrupted since the Year 1610. and condescended by yearly turning his Cattel off the ground and stopping him from casting Peits and therefore he must say 40 Years Possession by vertue of an Infeftment preceeding that Interruption It was answered for Nicolson non relevat unlesse either a Legal Interruption by Lawborres or Summons or at least a compleat and full Interruptio facti by debarring him on whole year from any deed of Community but for turning off his Goods which were presently put on again and he enjoying all his Profit such were Attempts and Incompleat Interruptions whereof he needed take no notice thereof seing he continued his Possession otherwayes there would be great inconveniences by such Interruptions which would be noticed by the Leidges and yet would cut off the Probation of the old Possession before the same The Lords found that whatsoever the Interruption 40 Years or immemoria possessione before the Interruption behoved to be proven for they thought that what Servituds were introduced only by Possession by the patience and presumed will of the other Partie being either Proprietar or having right of Communitie any Interruption was sufficient to show that the other
general Declarator it were not competent not being instantly verifyed without Reduction 3ly It were not probable but by Writ before the Denunciation and not by the Creditors Oath or having discharges being in prejudice of the KING but that no hazard might be of ante-dating it was required by Act of Parliament that beside the Writ the Parties should depone upon the truth of the Date The Defender answered to the first all Defenses competent in the general Declarator are reserved in the special To the second there is a Reduction depending The Lords found the Defense relevant only scripto of the Denuncer The Defender further alleadged the Horning was null as being upon a null Decreet and falling therewith in consequence The Lords repelled the Defense and found though the Decreet were null through informality yet the Horning would not be anulled but the Partie was in contempt in not Suspending debito tempore Compearance was also made for Mr. William Lauder who alleadged he had Disposition from the Rebel before year and day run The Lords found this Alleadgeance not relevant unless it were alleadged to be for a just Debt before the Denunciation It was further alleadged for Mr. William that the Pursuer granted Back-bond to the Thesaurer to imploy the Gift by his appointment and he offered to satisfye the Donatars Debt and the whole expense of the Gift The Lords found this not relevant without a second Gift or Declaration from the Thesaurer Thomas Crawfoord contra 〈…〉 Eodem die THomas Crawfoord as Executor Creditor to Umquhile Robert Inglis Pursues some of his Debitors It was alleadged no Process because Thomas as Factor for Robert Inglis had pursued the same Partie for the same Cause before the Commissaries of Edinburgh wherein Litiscontestation was made and so now it cannot be pursued elsewhere but the Process ought to be transferred and insisted in The Pursuer answered that he pursued then as Factor but now as Executor-Creditor who did not consider what Diligence Defuncts did but might insist therein or not 2dly This being a dilator is not instantly verifyed The Lords found the Defense relevant but would not find it competent unless instantly verifyed and because it behoved to be instructed by an Act Extracted Catharine Frazer contra Heugh Frazer February 11. 1663. THe said Catharine only Child of a second Marriage being provided to eight thousand merk of Portion at her age of 14 years but no oblidgment of Aliment or Annualrent till then pursues her Brother as Heir to her Fathers Estate being of a good condition for Aliment He alleadges he was oblidged for none not being Parent nor his Father oblidged by Contract or Bond for it The Lords found an Aliment due for the Pursuers Mother was not alive and able to Aliment her Lockie contra Patoun February 12. 1663. ELizabeth Lockie Spouse to Doctor Patoun pursues a Reduction of a Disposition granted by her Husband to certain Persons as prejudicial to her Contract in which Contract there was a Clause declaring Execution to pass at the instance of certain Persons who concur with this pursuit The Lords sustained the pursuit though it was not for Implement but for Reduction of a Right impeding the benefit of the Contract without concurse of the Husband seing the Process was against a Deed of the Husbands and he called passive Earl of Southesk and Carnegy contra Bromhall Eodem die BRomhall having taken the Lord Sinclar with Caption Southesk and his Son gave Bond to produce him to the Messengers or to pay the Sum. on the third of February betwixt two and ten whereupon Southesk having reproduced him craved by Supplication his Bond up or to be declared satisfied and extinct The Defender answered First He not being a Member or Dependent on the Colledge of Justice cannot be called thus summarily especially to declare a Bond void which is in effect a Reduction 2dly The Bond was not performed in so far as the Lord Sinclar was not reproduced till the 4th of February The Pursuer answered that the Defender living in Edinburgh and not compearing the Bill per modum quaerelae might be sustained To the second it being modica mora of one day without damnage to the Defender and there being trysting amongst the Parties all the time betwixt it was sufficient The Lords sustained the Petition and found it extinct Relict of George Morison contra His Heirs Eodem die THis Relict pursues for Implement of her Contract It was alleadged she had accepted a Wodset in full satisfaction thereof which now being Redeemed she could crave no more but Re-imploying the Money to her in Liferent The Lords found that this acceptance by the Wife being donatio inter virum uxorem she might now revock it and therefore found the Heir lyable to make up what was in the Contract The Town of Linlithgow contra Unfree-men of Borrowstounness February 13. 1663. THe Town of Linlithgow insisted in their Charge upon a Bond granted by some Inhabitants of Borrowstounness oblidging them to disist and cease from usâ—ing the Merchant Trade under the pain of 500 merk which was Suspended on this Reason that the Bond was extorted by unwarrantable force in so far as the Suspenders were taken in Linlithgow brevi manu and incarcerat till they granted the Bond. The Charger produced a Decreet of the Lords in Anno 1643. against several Inhabitants in Borrowstounness compearand who having Suspended the general Letters upon Act of Parliament for finding Caution to desist c. The Letters were found orderly proceeded and the Town of Linlithgow impowred not only to seize upon the Merchant Goods of the Inhabitants of Borrowstounness if they medled in Merchant Trading but also bearing with power to put the Persons using the saids Merchant Trade in Prison till Justice were done upon them and thereupon alleadge that the Suspenders being incarcerat by vertue and conform to the foresaid Decreet standing there was no unwarrantable Force used 2dly They produced an Act of the Council of Linlithgâ—w Bearing the Suspenders to have compeared before the Council and to have confessed their wronging of the said Town in the Trade of Merchandize and that there was Horning and Caption against them for the Cause and therefore declared their willingness to grant the Bond in Question The Suspenders answered to the First That albeit the foresaid Decreet bear compearance yet there is no Dispute in it and it is evident to be by Collusion and Surreptitious because this Conclusion now alleadged is ultra petita there being no such thing in the general Letters nor doth the Decreet bear any special Charge given neither is this Conclusion warrantable by any Law or Act of Parliament 2dly This Decreet could be no warrant to Incarcerat the Suspenders because it is given only against some particular Persons then living in Borrowstounness without calling either of the Barron or Baillies of the Burgh of Bâ—rronie and therefore is null as to any other Persons and as to the
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
Author It was answered for the Charger that the Retour could not be taken away hoc ordine by Reduction but behoved to be by a Summons of Error for Reducing the Service by an Inquest of Error to be pursued in Latine by a Precept out of the Chancellary It was replyed that there needed no Service of Error but the Retour and Infeftment might be Reduced unless there had been the question of propinquity of Blood of a nearer Heir which might have made the Inquest an Assise of Error which could not be in this case seing the Inquest had done their Duty who 〈…〉 produced one of the Grandsyres Seasine found him to have dyed last Vest and Seased as of Fee and neither could know nor was oblieged to know that there was a posterior Infeftment to the Defenders Uncle or Father The Lords found the Reduction receivable hoc ordine Hamiltoun contra a Dumb man in Glasgow Iuly 9. 1663. THis Dumb Man having Right to an Annualrent of twenty pound yearly out of a Tenement in Glasgow thereupon 〈…〉 Hamiltoun his Creditor having arrested and obtained Decreet for payment of this Annualrent in Satisfaction of the Dumb-mans Debt It was alleadged for the Person whose Bond was lyable for the Annualrents Absolvitor for five years thereof because he had payed these years to the Dumb-mans Sister by his consent in so far as he Delivered the Money to the Sister in presence of the Dumb-man and obtained her Discharge thereupon in his name subscribed also by him with the initial Letters of his name It was answered non relevat because the Discharge bore not that the Dumb-man received the same but his Sister and bears that she is obliedged to warrant it at the Dumb-mans hand and his presence and seing of Money Delivered and his Subscription cannot import his consent because he being Dumb could not know what the extent of the Sum was nor whatfor years it was The Lords Repelled the Defense in respect of the Reply Mr. Thomas Kirkcaldy contra Mr. Robert Balcanquhil and Heretors of Tranent Eodem die THe Heretors of Tranent raised a double Poynding against Mr. Robert Balcanquhil on the one part and Mr. Thomas Kirkcaldy on the other part both claiming the Stipend of Tranent 1662. It was alleadged for Mr. Robert Balcanquhil he ought to be preferred because he was Minister at Tranent by Presentation and Collation long anterior to Mr. Thomas Kirkcaldy and albeit he was Deposed in Anno 1648. yet he was Reponed by the Bishop of Edinburgh and Synod of Lothian in October 1662. because of that Narrative that he was unlawfully Deposed in Anno 1648. and so being Reponed before Martinmass 1662. he thereby must have Right to the half due at Martinmass 1662. It was answered for Mr. Thomas Kirkcaldy that Balcanquhils Repossession being after Michaelmess 1662. which is the Legal Term of Stipends and he having Served till that time by a Title standing Reposition can operat nothing before its Date and so cannot reach to Michaelmass Term The Lords preferred Mr. Thomas Kirkcaldy to the hail year William Hay contra Iohn Nicolson Iune 16. 1664. JOhn Nicolson having granted an Assignation in Anno 1653. of a Bond granted to him by Iames Crightoun Sheriff of Nithisdail principal and umquhil William Livingstoun Cautioner the name of the Assigney was left blank till 1663. at which time William Hayes name was filled up and which Assignation contained a Clause of Warrandice against all deadly as Law will William Hay having used Execution on the Assignation against the Principal and Cautioner in the Bond returns upon the Warrandice and Charges Nicolson who Suspends on this Reason that the Clause of Warrandice as it is conceived in the Assignation could import no more then that the Debt Assigned was a real Debt resting and not to be Evicted by any other Right Especially seing it did not bear expresly to warrand it to be good valide and sufficient which might infer to warrand not only that the Assignation should clear the Right of the Debt but that the Debitor should be solvendo And secondly considering that there is no onerous equivalent Cause for granting the Assignation Nicolson the Creditor might have Discharged Livingstoun the Cautioner and given him an Assignation that he might thereupon Charge the Principal The Charger opponed the Clause of absolute warrandice which have ever been esteemed to reach to the Debtors being solvendo The Lords found the Claúse thus concieved could not extend to the sufficiency of the Debtor Thomson contra Reid Iune 15. 1664. JAmes Thomson in Cryle having Appryzed certain Tenements in Edinburgh from Iames Sinclar pursues Iames Reid as one of the Possessors for Mails and Duties who alleadged that he had bruiked by Tack from Iames Sinclar before the Appryzing which Tack bare 80. pound of Tack Duty and to continue for seven years and bare expresly a provision that the said Iames Reid should retain the Annualrent of 600. merks adebted to him by Sinclar as a part of the Tack Duty and that he should not be removed untill the said 600. merks were payed The Pursuer answered that the alleadgence was no way Relevant to accompt the payment of the 80. pounds of Tack Duty to the Pursuer out of which the Defender could have no Retention of his Annualrent because that is but a personal provision adjected in the Tack and no part of the Tack and can work no more then if such a Provision had been made out of the Tack in which Case it would only have been a part of the Tack Duty in Compensation of the Annualrent as an Assignation would not be effectual against a singular Successor and would endure no longer then the Land was his who assigned the Duties So now the Land ceassing to be Sinclars the Assignment or Alocation thereof to be retained for satisfaction of the Annualrent is not Relevant against this Appryzer no more then that part of the Clause by which the Defender is provided not to remove till his Sum be payed which was never sustained to be effectual against a singular Successor The Defender answered that this Defense stood Relevant because the Clause of Retention is adjected immediatly to the Tack Duty and so is as a part thereof and so is real and Effectual against a singular Successor because if Sinclar had set the Tack for a grot it would have been valid and therefore might more set it for the satisfaction of the Annualrents and so much Duty further The Lords Sustained the Deâ—ense that seing there remained a Tack Duty over and above the Retention of the Annualrent and that the Tack had a particular Ish of seven years that it was valid but found the Case dubious if there had been no Tack Duty over and above the Annualrent but that the Land had been either set expresly for satisfaction of the Annualrent or for such a sum equivalent thereto to be retained In which case the Tacks would want a Tack Duty
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ— were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ— Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâ—ramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâ—ermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
1621. It was answered for the Lady They opponed the Lords dayly Practique ever since the said Act that Infeftments were never taken away thereupon by Exception or Reply Which the Lords found Relevant Montgomerie contra Hoom. Eodem die WIlliam Mongomery pursues Alexander Hoom to Remove who alleadged absolvitor because he stands Infeft and by vertue thereof in seven years Possession and so hath the benefit of a Possessorie Judgement It was Replyed that before any such Possession a Decreet of Removing was obtained against the Defender which made him mala fide Possessor It was duplyed that since that Decreet which was in absence the Defender had Possessed it seven years without Interruption which acquired the benefit of a new Possessorie Judgement And alleadges that an Interruption of Possession ceases by seven years albeit in the Point of Right it ceases not till Fourty The Lords found the Interruption stands for fourty Years and that no Possession thereafter upon that same ground could give a new Possessorie Iudgment the Possession being Interrupted not only by Citation but by a Decreet of Removing which stated the other Partie in Civil Pessession Earl of Sutherland contra Mcintosh of Conadge Eodem die THe Earl of Sutherland pursues Mcintosh of Conadge for the profit of a Regality belonging to the Earl viz. Blood-wyts Escheats c. whereof Conadge had obtained Gift from the Usurpers the time that Regalities were Supprest and declared that he insisted for those only that were yet unuplifted for which the Parties Fyned had not made payment albeit some of them had given Bond. The Defender alleadged absolvitor for Blood-wyts and Amerciaments which might have been done by the Justices of Peace because as to these the Inglish had done no wrong seing the Justice of Peace might then and may now Cognosce and Fyne for Blood-wyts whithin the Regality The Pursuer answered that as he might have Re-pleadged from the Justice General if he had not been impeded by the Act of the Usurpers so much more might he have re-pleadged from the Justice of Peace and therefore any Blood-wyts decerned by them belonged to him as Lord of the Regality The Lords repelâ—ed the Defense and joâ—nd the dead of the Iustice of Peace could not prejudge the Pursuer M. John Muirhead contra Iuly 21. 1664. MR. John Muirhead as Assigney pursuing he alleadged that the Assignation not being intimat before the Cedents death the Sum was in bonis defuncti and the Assigney could have no Right without Confirmation The Lords Repelled the alleadgance James Johnstoun Merchant in Edinburgh contra The Lady Kincaide November 11. 1664. JAmes Iohnstoun pursues the Lady Kincaide as Executrix to her Husband who alleadged absolvitor because the Testament was exhausted and she had obtained a Decreet of Exoneration which being standing un-reduced she behoved to be assoilzied seing there was no Reduction thereof raised 2ly Albeit the said Exoneration were quarrallable hoc ordine yet it appears thereby that the Testament was exhausted The Pursuer answered that the first Defense on the Exoneration non Relevat unless the Pursuer had been cited to the giving thereof it operats nothing against him nor needs he Reduce it 2ly The second member of the Defense of exhausting the Testament mentioned in the Exoneration non Relevat unlesse it were alleadged exhausted by lawful Sentences before intenting of the Pursuers Cause The Defender answered that it was Relevant to alleadge that payment was made of lawful Debts of the Defuncts instructed by writ before intenting of the Pursuers Cause for seing the Debt was clear the Executor ought not to multiply Expenses by defending against the same unless it were alleadged there were collusion to prefer the Creditors payed The Lords repelled both members of the Defense and found that the Executrix might not without a Sentence prefer any Creditor especially seing it was not a Debt given up in Testament by the Defunct neither was it alleadged that the Pursuer had long neglected to pursue Nicolas Murray Lady Craigcaffie contra Cornelius Neilson Merchant in Edinburgh November 12. 1664. NIcolas Murray pursues a Reduction of a Decreet of the Baillies of Edinburgh obtained against her at the instance of Cornelius Neilson upon this Reason that she being pursued for the Mournings for her self and Family to her Husbands Funeralls which Mournings were delivered to her by the said Cornelius and were bought by her from him or by her Order sent to her which was referred to her Oath and she deponed that Cornelius had promised to his Father to give necessars for his Funerals out of his Chop and according to that promise had sent unto her The Baillies found that this qualitie adjected in the Oath that the Furniture was upon Cornelius promise to his Father resulted in ane Exception which they found probable by Write or Oath of Cornelius who having deponed denyed any such promise and therefore they decerned the Lady to pay Against which her Reason of Reduction is that she ought to have been Assoilzied by the Baillies because her Oath did not prove the lybel viz. That she bought the Wair from Cornelius or made her self Debitor therefore but only that she received the same from him without any Contract or Ingadgment which would never make her Debitor for a Wife or a Bairn in Family are not lyable for their Cloaths unless they promise payment but only the Father and in the same manner the Mourning for the Funeralls of the Husband is not the Wifs Debt but the Husbands Executors The Defender answered that the Reason was no ways Relevant seing the Pursuers Oath proved the receipt of the Goods which was sufficient ad victoriam causa The quality being justly taken away for albeit the Husband or his Executors were lyable for the Relicts Mournings yet a Merchant that gives off the same to the Relict is not oblidged to dispute that but may take himself to the Relict who received the same without either Protestation or Aggreement not to be lyable The Pursuer answered that whatever Favour might be pleaded for a Merchant Stranger yet this Furniture being given by the Defuncts own Son to his Relict could not oblidge her The Son being the Fathers ordinar Merchant The Lords found that the Oath before the Baillies proved not the lybel and that the accepting of the Mournings did not oblidge the Relict but the Executors seing the Defunct was a Person of their quality that his Relict required mourning and therefore Reduced Galbreath contra Colquhoun Eodem die WAlter Galbreath pursues an Exhibition of all Writs made by or to his Predecessors ad deliberandum The Lords restricted the lybel to Writs made to the Defunct or his Predecessors or by them to any Preson in their own Family or containing any Clause in their â—avour whereupon the Defender having Deponed that he had in his hand a Disposition of Lands made by the Pursuers Predecessors Irredeemably and that he had his Predecessors progress of these Lands but that
and salted them themselves to be proven by their Oaths and would not sustain the Probation of the Custom seing the principal Decreet was not produced unless that at least the Testimonies proving that Custom were repeated and produced out of the old Process that it might appear whether there were any ground of Objection against the manner of Probation Lady Colvil contra Lord Colvil December 14. 1664. THe Lady Colvil pursues the Lord Colvil to relieve her of the whole Debt hererable and moveable of the Defunct his Predecessor because the Defunct in his Testament had named her his Lady Executrix and universal Legatrix with a special Clause that she should be free of all his Debt whatsomever The Defender alleadged Absolvitor because no Deed done by a Defunct in lecto or in Testament can prejudge his Heir The Pursuer replyed that this Testament was made in the Defuncts leige poustie The Defender answered that on Death-bed and by Testament equiparantur Which the Lords found Relevant and assoilzied Laird of Phillorth contra Forbes of Aslocon December 16. 1664. PHillorth as Donatar to the Escheat of Forbes of Aslocon and having obtained general Declarator insists in his special Declarator It was alleadged Absolvitor because the Horning whereupon the Gift was granted is null in so far as being beyond Dee it is upon six dayes contrair to to the Act of Parliament 1600. Declaring all Hornings beyond Dee on less then fifteen dayes null conform to a Decision in Dury albeit on a Bond bearing a Clause of Registration on six dayes onlyâ— February 14. 1625. Steuart contra Bruce It was answered for the Pursuer that the Acts of Parliament hinder not the agreements of Parties but is expresly anent Hornings on Lawborrows or the like but these are on the parties own consent by the Clause of Registration and if these should not be valide all the Hornings and other Executorials thereon beyond Dee since 1600. would be null and such Bonds would have no effect seing upon the Clause of Registration Horning could not be otherwise direct on six dayes and so they should not have any summar execution The Defender answered that the Act is general of all Hornings and bears a general Reason because it is impossible for Parties at such distance to come to Edinburgh to Suspend in four dayes and privat pactions cannot derogat from general Laws where the express reason is for publick utility contrair to which no man can make himself Rebel more then he can give power to Incarcerat himself where Law gives no warrant but prohibits The Lords Repelled the Defense and sustained the Horning Innes contra Forbes of Touchon Eodem die INnes having Charged Forbes of Touchon on an Act of Adjournal for an Assythment for wounding him and reparation of his Blood He Suspended and alleadge the Act was null wanting Citation Compearance or probation It was answered that being the Act of the Justice General who is Supream in criminalibus it cannot be recognosced by the Lords The Lords having considered the case amongst themselves thought that in what was truly Criminal as to corporal pains or amerciaments in way of punishment they would not medle with the Justice Sentences but Assythment being civil for the Damnage and Interest of the Party pursuable before the Lords they might recognosce thereon and therefore in respect that the Probation of the Fact was by a Process before the Baillies they ordained that Process to be produced before answer and the Suspender to condescend if there was any exorbitancy in the Sum decerned for the Assythment Mr. Thomas Paterson contra Watson December 17. 1664. MR. Thomas Paterson Charges Watson to remove from his Gleib who alleadged the Designation is null because it is not subscribed by the Ministers Designers but is only the assertion of a Nottar 2ly By the Act of Parliament 1663. anent Gleibs there is an exception of Royal Burrows to which Ministers Gleibs are not due ita est Dysert is a Royal Burgh The Charger answered to the first that the having a warrand from the Bishop and Presbytrie his instrument of Designation is as sufficient as a Seasine to give Right to Land And to the second the Royal Burrows excepted must only be understood of such who have not a Landwart Congregation but are chiefly constitute of an Incorporation for Trade but this Burgh is notourly known to be but a Burgh of Barony holden of the Lord Sinclar albeit it has the priviledge of Vote in Parliament and is a Parsonage The Lords Sustained the Designation but before Extract ordained the Testificat of the Ministers Designers under their hands to be produced Sarah Blomart contra Earl of Roxburgh SArah Blomart pursuing the Earl of Roxburgh he alleadged she could have no Processes being of the Vnited Provinces who are declared enemies to His Majesty It was answered that there was no Denunciation of War by His Majesty as King of Scotland nor any Proclamation in Scotland to that purpose It was replyed that there was a Warrant by the King and Council to cease upon all the Dutch Vessels in Scotland The Lords found that this was but an Imbargo and no Denunciation of War in Scotland and therefore found Process Mr. Iames Reid Minister of North-Leith contra William Melvil December 20. 1664. MR. James Reid Charges William Melvil for the Teind of hard Fish bought by the said William in the Lewes and imported by him at Leith He Suspends on this Reason that he bought the said Fish from Merchants in the Mercat and did neither take the same himself nor bought them immediatly when they were green from the Taker and so can be lyable for no Teind The Charger answered that he is decennalis triennalis Possessor of getting twenty shilling of the Last of all Fish imported at New-haven and for instructing thereof produces a Decreet in Anno 1634. and another in Anno 1662. and if need beis offers him yet to prove Possession The Defender answered that these Decreets are expresly against the Fishers or Takers of Fish but not against Merchants buying and importing the same and as for the Custome non Relevat unless it were an universal Custome established by Sentences for if some few Merchants should have to save themselves trouble given an uncertain acknowledgement according to their own discertion and no fixed Duty nor by no compulsive way it imports not The Lords Suspended the Letters except only for such Fish as should be taken by the Boats and Fishers of New-haven Agnes Young and her Husband contra Buchanans Eodem die AGnes Young pursues Buchanans her Children for her third of her Husbands Moveables and for her Liferent use of the other two thirds conform to her Contract of Marriage whereby she is provided to his Liferent of all Goods and Geir conquest during the Marriage moveable and immoveable The Defenders answered that the Pursuer cannot both have the third and the Liferent of the whole because it must be presumed
that the Liferent of the whole was given in satisfaction of the third and all The Pursuer answered that this could not be presumed unless it had been so exprest no more then a Terce is excluded by a provision of Liferent unless it bear in satisfaction of a Terce The Lords found the Defense Relevant that the Pursuer could not both have her third and the Liferent of the rest but gave her her option either of the third provisione legis or of her Liferent of the whole provisione hominis Earl of Athol contra Iohn Scot. Eodem die THe Earl of Athol having obtained Decreet against Iohn Scot before the Commissar of Dunkeld for the Teinds of the said Iohn his Lands He Suspnds and raises Reduction on this Reason that albeit the Decreet bear a Defense proponed that the Teinds in question are Mortified by the King to a Kirk and that the same was found Relevant and that the said Iohn succumbed in proving thereof yet he offers him to prove that before the Term elapsed he produced the Mortification before the Commissar and thereupon took Instruments which is produced Which the Lords found Relevant Mr. George Norvel Advocat contra Margaret Sunter Eodem die MR. George Norvel pursuing for Mails and Duties upon an Appryzing Compearance is made for Margaret Sunter who alleadged absolvitor because she was Infeft in Liferent before Mr. Georges Right which being found relevant for instructing thereof she produced her Seasine Which the Lords found not to instruct without an Adminicle and therefore sustained the Decreet The said Margaret raised Reduction of this Decreet on this Reason that now she produced an Adminicle viz. her Contract of Marriage 2ly That the Decreet is null because the quantities are not proven The Charger answered to the first that the Lords having found the Exception not proven the Pursuer could not be admitted in the second instance against a Decreet in foro upon production of that which she should have produced at first As to the second he needed not prove the quantities seing her exception was total without denying the quantities The Lords found the Decreet valide but ordained some of their number to deal with Mr. George to show favour to the poor woman Doctor Ramsay contra Mr. William Hogg and Alexander Seton December 22. 1664. THese three Parties having appryzed the same Lands the first Appryzer being Infeft the second not being and the third being Infeft The first Appryzer declared he would not insist for the Mails and Duties of the whole but only possessed a part The question came whether the second Apprizer not having Charged should be preferred to the third who was Infeft It was alleadged for the second Appryzer that he needed not be Infeft because the first Appryzer being Infeft in all he had the only jus proprietatis and there was nothing remaining but jus reversionis which the Appryzing alone carryed and as the second Appryzer might redeem the first as having the right of his Reversion so he might force him either to possess the whole whereby his Appryzing might be satisfied or give warrant to the second to Possess the remainder so likewise he might use Redemption It was alleadged for the third Appryzer that if the question were of the Redemption of the Land the second had good Right but the question being for the Mails and Duties a right of Reversion could never carry these without a Seasine The Lords considering the Point in Law and the great disadvantage the Leiges should sustain if all Appryzers were necessitat to take Infeftment They prefered the second Appryzer Cornelius Inglis contra Mr. Rodger Hog Eodem die MR. Cornelius Inglis being Infest upon an Appryzing pursues a Removing compearance is made for Mr. Rodger Hog who alleadged that he is also Infeft and had charged the Superiour though after the first Appryzer and had possessed seven years by lifting the Mails and Duties and therefore craved the benefit of a Possessorie Judgement The Lords having considered the Case amongst themselves whether an Appryzing and Charge without Infeftment could give the benefit of a Possessorie Iudgement They were equally divided in their Votes and the President resolved before he gave his Vote to settle the Parties contra Edmistoun of Carden Ianuary 6. 1665. EDmistoun of Carden being pursued by a Creditor of his Fathers as Lucrative Successor to his Father by accepting of a Disposition of his Fathers Lands after contracting of the Pursuers Debt alleadged absolvitor because being pursued beforeby another Creditor of his Fathers he did then alleadge that his Disposition was not Lucrative but for a Cause onerous equivalent to the worth of the Land which he proved by instructing the Rental and Rate of the Land at the time of the Disposition by Witnesses and the Sums undertaken for it by Writ whereupon he was Assoilzyed and can never be again conveened upon that ground nam obest exceptio rei judicatae for if he had been condemned as Lucrative Successorâ— upon the other Creditors Probation It would now have proven against him and therefore his beng Assoilzied must be profitable to him against others unless Collusion were alleadged and Instructed The Pursuer answered that this absolvitor was res inter alios acta and albeit a Condemature would have been effectual against the Defender non sequitur that an absolvitor should also be effectuall for him because he was called to that Condemnature but this Creditor was not at all called to the absolvitor 2. Even in a Condemnature if the Defender had omitted any thing that he might have alleadged in the one case competent and omitted would not hinder him to propone the same against another Creditor Therefore the Defender can only repeit the grounds of that absolvitor which if he do the Pursuer will alleadge That whereas in the absolvitor the Defender was admitted to prove the Rental The Pursuer omitted to crave the benefit of Probation which he would have gotten and this Pursuer offers him to prove that whereas the Rental was proven to but 18. Chalders of Victual the true Rental was worth 30. Chalder 3dly A part of the onerous Cause was the Portion of the Defuncts Children which would not Prejudge the Pursuer being an anterior Creditorâ— The Lords found that the absolvitor could not prejudge this Pursuer as to these points omitted and that it could not have effect inter alios except it had been in re antiqua where the Witness had died that in that case the Testimonies out of the former Process might be repeited but as to the Rental the Lords would not give the Pursuer the sole Probationâ— being so lubrick a point as not only what it payed but what the Lands were worth and it might have payed and ordained Witnesses to be examined hinc inde and found that the Bairns Portions not being payed bona fide before the intenting of this Cause could not prejudge the Creditor but ordained the Defender to Suspend on double
Poynding against the Pursuer and the Bairns but in regard of so much ground in the matter they declared they would not sustain the Passive Title to make him Successor universal but only as to the just Price and the Cause Onerous Grahame of Blackwood contra Brouns Ianuary 7. 1665. JOhn and William Brouns having Appryzed certain Lands and William Grahame having Appryzed the same within a year after pursues an Accompt and Reckoning against the first Appryzer upon the last Act of Parliament betwixt Debitor and Creditor and craves to come in pari passu with the first Appryzer not only as to there Mails and Duties of the Lands Intrometted with by the Appryzer since the said Act of Parliament but also for these Duties that were Intrometted with before the said Act and that because the Act bears expresly That such Appryzing shall come in pari passu as if there had been one Appryzing led for both It was answered for the first Appryzer that what he did uplift bona fide before any Process intented against him at this Pursuers instance he cannot pay back a part thereof to the Pursuer because he is bona fide Possessor and because the Act of Parliament bears That such Appryzings shall come in pari passu which being in the future must be understood to be from their intenting of Process at least from the date of the Act but not from the beginning The Lords having considered the Tenor of the Act of Parliament found that such Appryzings should only come in pari passu from the date of the Act but that the bygones uplifted by the first Appryzer before the Act should be accompted to him in his Sum but no part thereof repeited to the second Appryzer and found that the Sums Appryzed for Principal and Annualrent of both Parties should be restricted as they were the time of the Act of Parliament in one total Sum and the Rent to be received from that time proportionally to the total Sums and that the first Appryzer should have allowance in his preceeding Intromission of the expenses of the composition to the Superiour and the charges of the Appryzing without compelling the second Appryzer to pay him the same Normand Lesly contra Gilbert Gray Ianuary 10. 1665. NOrmand Lesly charges Gilbert Gray Provost in Aberdeen to pay 2000 merk for which he was Cautioner for William Gray He Suspends and alleadges that the Charger had gotten an Assignation from the said William Gray to an Bond granted by the Earl of Errol to him and therefore craved that the Charger might be decerned to transfer that Assignation to him being given for the security of the same Sum. It was answered that the Charger was only oblidged to give a discharge to his Cautioner and not an Assignation of the Bond it self and much less of any security ex post facto he had gotten therefore The Lords declared they would not give the Charger Process till he Assigned the Bond and all security gotten therefore to the Cautioner William Reid contra John Reid Eodem die WIlliam Reid pursues Iohn Reid as his Tutor to deliver all Writs belonging to the Pupils Father or which were in his Custody and Possession quovis modo Intrometted with by the Tutor Who alleadged the Pupil could have no interest in any Writs but these which belonged to his Father The Lords found that Pupil had interest to call for Exhibition and Delivery of all Writs that were in his Fathers Possession quovis modo and ordained the Tutor to exhibit all but prejudice to any Partie having interest to crave the delivery of these Writs if they belonged to them Campbel contra Mary Bryson Eodem die GEorge Campbel having right by Adjudication to the Reversion of a Wodset of some of the Lands of Newlistoun Wodset by the Laird of Newlistoun to Andrew Bryson Baillie of Edinburgh whereupon he was publickly Infeft and thereafter did dispone the same to his Daughter Marry Bryson and she was Infeft holden of her Father which Disposition contained a power to the Father to dispone on the Sum in the Wodset Right during his Lifetime without her Consent after all Andrew Bryson obtained a Confirmation of the foresaid Wodset with Addition of 16. aikers of Land more for the same Sum which was conceived in favours of himself and the Heirs of the Marriage whereupon he was Infeft The said George having used an Order of Redemption craved Declarator Compearance is made for the said Mary who craved the said Sum to be delivered up to her It was alleadged by the Pursuer that she could not have up the Sum unless she were Infeft as Heir to her Father both in the first and last Wodset and resigned the same and so liberat the Land of the Burthen thereof for albeit she was Infeft proprio nomine yet it was but base holden of her Father so that the Superiority remained with her Father and she behoved to be Infeft as Heir to him and renunce the same 2. The Corroborative Wodset stood in her Fathers Person who by her Disposition had a Power to dispose of the first Wodset and so had altered the Fee thereof to himself and his Heirs It was answered that the second Wodset was taken when Maries mother was dead and she the only child of that Marriage and so was alike as if her name had been expressed 2. The Declarator it self will sufficiently secure the Redeemer albeit there were no Resignation 3dly The second Wodset is but accessory to the first so that the said Mary having power to renunce the first Wodset proprio nomine the second may be declared to be extinct in consequence and further offered Caution if need were to warrand the Redeemer The Lords found the Lands to be Redeemed but ordained the Money not to be given up untill the said Mary had Infeft her self as Heir to her Father and Resigned for they thought the Redeemer ought to put upon no hazard of repetition or of the danger of the Infeftment unrenunced seing it was the ordinar Course to be Infeft and to renunce Magaret Arnot contra Mr. Robert Arnot Ianuary 11. 1665. MArgaret Arnot pursues a Reduction of a Decreet of Exoneration obtained by William Arnot her Uncle and Executor to her Father It was alleadged for Mr. Robert Arnot Son and Successor to the said William that all Parties having Interest were not called viz The Creditors and Legatars who were concerned in the event of the Reduction for if there Sums and Discharges were not allowed according to the Exoneration The Defender behoved to return upon them for payment and therefore they ought to be called to defend their Interest The Lords repelled the Defense and found no necessity to call the Creditors and Legatars but that the Defender might intimat the Plea to them Neilson and Calender contra Ianuary 12. 1665. NEilson and Lodovick Calender her Spouse pursue a Transferrence of an old Summons on which there was an Inhibition used It
thought to be Creditor in the same Clause The Lords found the conception of the Clause that the Brother by falling now Heir was excluded seing it was clear by the meaning of the Defunct that his Heir should have his Lands and his Bairns of his second Marriage should have though but one 4000 merks but here the Heir of the first Marriage was never served Heir They also found that the Portions of the Children being to an uncertain day and not conceived to their Heirs or Assigneys that they dying before that day had no right to the Stock but only the Annualrent medio tempore so that the Stock accresced to the surviving Children as if the Defuncts had never existed and that their Assigneys or Creditors could not have affected the same and so found the Brother had no right as nearest of Kin to the two deceasing Children not attaining the Age mentioned in the Contract William Stewart contra Stewarts Ianuary 18. 1665. WIlliam Stewart pursues a Poynding of the Ground of the Lands of Errol upon an Infeftment of Annualrent granted to his Grand-Father by the Earl of Errol by his Bond and Infeftment following thereupon in which Bond there were Cautioners the Annualrent was for a Sum of 7000 merk and a Sum of 8000 merk Compearance is made for the Pursuers Brothers and Sisters who alleadged that as to the Sum of 7000 merks it became moveable and belongs to them as nearest of Kine In so far as their Father made Requisition for the same It was answered the Instrument of Requisition is null and being disconform to the Clause of Requisition in respect that the Original Bond was to the Husband and Wife the longest liver of them two in Conjunctfee and their Heirs c. And the Requisition bears expresly That if the Husband or his Heirs required with consent of the Wife then the Debitor shall pay ita est the Instrumenet bears no consent It was answered that albeit some Points of the Requisition were omitted yet seing the mind of the Defunct appears to take himself to his Personal Right and consequenly to prefer his Executor to his Heir it is sufficient The Pursuer answered non relevat because every Intimation of the Defuncts Intention is not enough but it must be haili modo and the ground whereupon the Sums become moveable is because the Requisition looses and takes away the Infeftment and therefore if the Requisition be null the Infeftment is valid and he Bairns can never have access The Lords found the Requisition null and preferred the Heir Stewart contra Stewart Ianuary 19. 1665. IN the foresaid Cause it was further alleadged for the 8000 merk that it was also moveable because as to it there was no Liferenter and the Fear himself did require It was answered for the Children that the Requisition is null because it mentions not the production of a Procuratory nor the production of the Right it self 2ly The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul whereas he was Cautioner for the Earl of Errol granter of the first Bond. It was replyed oppones the Requisition bearing That the Procurators power was sufficiently known to the Notar 2ly non Relevat unless the Person required had called for the Procuratory or Right and had been refused 3ly The Procuratory is now produced with the Right and the Defunct acknowledged the Procuratory and Right because he raised horning thereupon The Lords sustained the Requisition and found the Sum moveable and preferred the Bairns thereto Shaw contra Lewens Eodem die WIlliam Shaw being a Factor at London and dieing there and having Means both in England and Scotland There falls a Competition betwixt his Executors nuncupative in England and his nearest of Kine Executors in Scotland Anna Lewens Executrix confirmed in England produces a Sentence of the Court of Probat of wills in England bearing That upon the Examination of Witnesses that Court found that William Shaw did nominat Anna Lewens his Executrix and universal Legatrix And that being asked by her what he would leave to his friends in Scotland He declared he would leave her all and them nothing because they had dealt unnaturally with him It was alleadged for the Defuncts Cusigns Executors Confirmed in Scotland that they ought to be preferred because as to the Defuncts Means and Moveables in Scotland the same must be regulat according to the Law in Scotland where a nuncupative Testament hath no use at all and albeit a Legacy may be left by word yet it cannot exceed a 100 lib. Scots It was answered that as to the Succession the Law of Scotland must regulat so that what is Heretable cannot be left by Testament though made out of Scotland As was found in the Case of the Successors of Col Henderson dying in Holland and in the Case of contra Meldrum yet as to the Solemnity of Acts to the Law and Custom of the Place where such Acts are done takes place as where an Act is done in Scotland albeit it be only probable by Writ or Oath of Parties yet being done in England it is probable by Witnesses though it were of the greatest moment and though the Law of Scotland in Writs of Importance requires the Subscription of the Partie before Witnesses or of two Nottars and four Witnesses yet Writs made in France and Holland by the Instrument of one Nottar are valid so here there being no difference from the Law of Scotland which always preferres Executors nominat before nearest of Kin and the difference only as to the Solemnities and manner of Probation that there it may be proven by Witnesses there was a Nomination and here only by Writ The Lords having considered the Reasons and former Decisions preferred the Executors confirmed in Scotland for they found that the Question was not here of the manner of Probation of a Nomination In which case they would have followed the Law of the Place but it was upon the Constitution of the essentialls of a Right viz. A nomination which albeit it were certainly known to have been by word yea if it were offered to be proven by the nearest of Kin that they were Witnesses thereto yet the Solemnitie of writ not being interposed the Nomination is in it self defective and null in substantialibus Lord Lour contra Ianuary 20. 1665. IN a Process for making arrested Sums furth-coming two Arresters viz. my Lord Lour and another Competing It was alleadged for Lour that the first Arrestment is null because the Partie was out off the Countrey when it was only made at his dwelling house which is not Legal seing all Summonds Intimations Premonitions Requisitions and all Denunciations against Parties out of the Countrey must be by Letters of Supplement from the Lords Execute at the Mercat Cross of Edinburgh and Peir and Shore of Leith So must Arrestments against these who are out of the Countrey be there Which the Lords found relevant and preferred the second Arrestment Personal
Litle contra Earl of Nithsdail Eodem die LItle pursues an Improbation and Reduction against the Earl of Nithsdaile of the Rights of some Lands Whereinâ— the Lords sustained the Pursuers Interest on a Compryzing and Charge without Infeftment and though the Appryzing was on Litles own Band simulat and assigned to himself and found such Deeds might make him lyable as behaving as Heir if he Intrometted and were sufficient Titles any other way The Lords also found that Certification ought to be granted against Retours and Charters though in publick Registers but not against Writs Registrate in the Books of Session the date being condescended on by the Defender were sustained against all Writs granted to the Defender and his Authors but such as Seem to represent them are called nor against Writs granted by the Pursuer his Predecessors or Authors but only his Predecessors to whom he doth Succeed jure sanguinis and such Authors as he produces Right from but they would not admit Certification against Appryzing if the Infeftment thereupon were produced Sir John Baird contra The Magistrats of Elgine Ianuary 25. 1665. SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel whom they suffered to escape forth of their Prison It was alleadged for the Magistrats absolvitor because they could be oblidged no further but for their ordinar diligence of Custodie but not contra vim majorem and offered to prove that about six a clock at night in the winter time the Rebels Lady going in to Sup with him the keeper opening the Prison Door to let her in six or seven Armed men pressed in with her and that there was sixty more at the Gate The Pursuer answered non relevat because it was the Keepers fault to let in any body at that time of night The Lords found the Defense relevant to be proven by Witnesses above exception which were condescended on Parson of Dysart contra Watson Eodem die ANderson Parson of Dysart having a designation of four Aikers of Iohn Watsons Land which was Bishops Land charges him to removeâ— Watson Suspends on this Reason that there are Parsons Lands in the Paroch more ewest to the Kirk and lying about the Parsons Mans and therefore according to the Order of the Act of Parliament anent Designation of Glebs the Parsons Lands must be designed in the first place before the Defenders Lands which are Bishops Lands It is answered for the Charger that the Parsons Lands were Feued out before the said Act of Parliament and are all build with houses incorporat within the Town of Dysart It was answered that the said Act of Parliament bears That the Parsons Lands shall be first Designed although they be Feued out before Which the Lords found relevant and Ordained the Parsons Land to be cognosced what quantitie was wanting thereof to be made out of the Bishops Land William Menzies contra Laird of Drum Eodem die WIlliam Menzies as Executor to Alexander Menzies and umquhil Margart Gordon the other Executor having obtained Decreet against the Laird of Drum for 8000 merk The said Margaret being dead William charges for the whole Margaret having died at the Horn Compearance is made for the Donatar It was alleadged for Drum that he could not be conveened at the instance of this Pursuer without concourse of the other Executor or some to represent her had been called For they might have alleadged that this Charger is satisfied of the half of his Executry The Lords found that seing the Testament was execute by a Sentence the other Executor needed not be called 2ly Drum alleadged that he could not be lyable to this Executor but for the half It was alleadged for the Donatar that he craved preference for the other half It was answered that the Donatar could have no interest because the Sum was Heretable It was answered that albeit it was Heretable yet it became moveable by the Executors taking a Decreet therefore in the same Case as if Requisition had been used In this the Lords did not decide some being of opinion that it was Moveable others contrair because an Executor being but a Successor as a Decreet of Registration or Transferrence would not change the Nature of the first Bond so neither would this Decreet The Heretors of the Fishing of Don contra The Town of Aberdeen and their Feuers Ianuary 26. 1665. THe Heretors having Salmond Fishing in the Water of Don above Aberdeen pursue a Declarator of their Right of Salmond Fishing and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen and insist upon these Particulars That the Town of Aberdeen hath no Right to Cruives but is only Infeft cum piscationibus piscarijs and within such a bounds which cannot carry Salmond Fishing being inter regalia much less Cruives It was answered that such a Clause granted to an Incorporation or Community or being in Baronia with Immemorial Possession is sufficient and that there is a later Right granted to the Town with power of Cruives within the said Bounds uti possidebantur It was answered that the Pursuers had their Cruives established before that time The Lords found the Town of Aberdeens Title to Cruives albeit conceived but conform to the first Clause with long Possession was sufficient 2ly The Pursuers insisted against the Transporting of the Cruives from one place to another which they could not do Cruives being a Servitude strictissimi juris as a way being once chosen and fixed cannot be changed especially in respect of the Clauses uti possidebantur It was answered that there being a Bounds expressed and mentioning Cruives to have been there before the meaning can be no other then that these Cruives should be removed if Inundations alter the present stans and uti possidebantur is only understood of the way of building as before The Lords found by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dyck and the former Dyck demolished so that the Fishings above be in no worse condition then formerly 3ly They insisted for the wydnesse of the Heeks whereanent it was alleadged that by an Act of Parliament King Iames the fourth Hecks were appointed to be five Inches wyde which is confirmed by an Act 1661. It was answered that the Act King Iames the 4th did relate to a former Act of King Davids which was not to be found but there were two Acts by King Iames the 3. Relating to the old Act by King Alexander which was found to bear three Inch. So that the Act K. Iames the 4th though posterior being but Relative and the Act Related not known The Lords found it was a mistake in the writing of the Act and that in the stead of King David it should have expressed King Alexander and so born only three Inches seing otherwayes five Inch would let the greatest part of Salmond passe 4ly They Insisted for the Saturndays Slop and craved that
title to it 2. Though it should be condescended that they were lent yet it must be proven only scripto vel juramento being a matter above an hundred pound The Pursuer answered that in liquid Sums or Promises Witnesses are not receivable above that Sum but in corporibus or facts as in bargains of Victual made and delivered Witnesses are sufficient though for greater Value The Lords found the Pursuer behoved to condescended upon the way the books was delivered and found it probable by Witnesses Mr. William Kintor Advocat contra John Boyd Baillie in Edinburgh Eodem die MR. William Kintor and Iohn Boyd having both adjudged the Lands of Mountlouthian pursue mutual Reductions of each others Rights Mr. Williams Right was upon a Decreet cognitionis causa against the Appearand Heir renuncing against which Iohn Boyd alleadged that the Adjudication was null proceeding upon a null Decreet cognitionis causa First In so far as it was lybelled at the instance of Kintor as Assigney by his Brother who was Heir to his Father and Execut-Executor and neither Retour nor Testament produced and so was null for want of probation The Pursuer answered that he had now produced in supplement of the Decreet the Writs The Lords sustained the Decreet only as ab hoc tempore 2ly Boyd alleadged that the Decreet cognitionis causa proceeded on six hundered merks which was Heretable by Infeftment and contained Clause of Requisition and no Requisition produced The Lords found the Decreet null pro tanto and to stand for the rest being upon diverse Articles 3ly Boyd alleadged that the said Decreet ought to be Reduced in so far as it proceeded against the Cautioner of a Tutor for payment of the Annualrent of his Pupils money during the Tutorie and for the Annualrent of that Annualrent a tutâ—la finita because the Tutor had uplifted at least ought to have uplifted and imployed the same for the Pupills behove ex officio It was answered that albeit Tutors are oblidged for their Pupils Rent which are in Tennents hands yet not for the Annualrent of their Money being in secure hands then and now if the Tutor had lifted it it would have been lost he being broken and the Cautioner also and the Debitors being great men as the Marquess of Hamiltoun and Lord Burghlie they would easily have Suspended and lost the Pursuers pains The Lords found that Tutors were oblidged to uplift their Pupils Annualrents though the Creditors were secure and to imploy them for Annualrents but not for each year they were due but ante finitam tutelam because though he had them he was not oblidged every year to imploy them severally and so sustained the Decreet 4ly Boyd alleadged that the years of the Tutorie ought to have been proven which was not and so the Decreet is null The Lords sustained the Decreet seing it was lybelled in communi forma unless it were alleadged that some of these years were post sinitam tutelam here a Testificat of the Pupils age was produced Lord Borthwick contra Mr. Mark Ker. Ianuary last 1665. THe Lord Borthwick pursues a Reduction ex capite inhibitionis of all Rights made by Sir Mark Ker to Andrew or Mr. Marks Ker of Moristoun of certain Lands The Defenders alleadged no Process because none to represent Sir Mark Ker were called who being bound in warrandice to the Defenders ought to be called whereas of old Processes sisted till warrands were first discussed so now the warrand ought at least to be called The Pursuer answered that he was not craving Reduction of Sir Marks own Right but of Moristouns Right granted by Sir Mark who was common Author to both And as to the warrandice the Defender might intimat the plea if he pleased The Lords found no Process till the warrand were called Alison Kelloâ— contra Pringle Eodem die ALison Kello pursues a Reduction against the Lairds of Wadderburnâ— and Pringle and craves Certification It was alleadged for Pringle no Certification because he was minor non tenetur placitare de Haereditate Paterna The Pursuer answered primo non relevat against the Production but the Minor must produce and may alleadge that in the Debate against the Reason 2ly Non constat that it is Hareditas Paterna and therefore he must produce at least his Fathers Infeftment 3ly All he alleadges is that his Father had an Heretable Disposition without Infeftment which cannot make Haereditatem Paternam else an Heretable Bond were not Reduceable against a Minor or an Appryzing and Tack 4ly Albeit the alleadgeance were proponed in the discussing of the Reason yet the Reason being super dolo metu upon which the Defenders Original Right was granted and not upon the poynt of Preference of Right the brocard holds not in that Case as it would not hold in Improbation in casu falsi The Lords found that the Defender ought to produce his Fathers Infeftment and that a naked Disposition would not be sufficient which being produced they would sustain the Defense quoad reliqua against the Production but that they would examine Witnesses upon any point of fact in the Reason to remain in retentis that the Witnesses might not die in the mean time without discussing the Reason but prejudice of their Defenses Anderson and Proven contra Town of Edinburgh Eodem die ANderson being Creditor to Proven arrests in the hands of Gairdner all Sums due by him to Proven and thereupon pursues before the Commissaries of Edinburgh Gairdner gives his Oath that he is Debitor to Proven no way but for the Tack Dutie of the Customs of Edinburgh whereunto he was Sub-tacks-man to Proven conform to his Bond produced whereupon the Commissaries decerned Gairdner Suspends on double poynding It was alleadged for the Town of Edinburgh that the Sum in question being a Sub-tack dutie they had the common priviledge of all Masters against their Tennents and Sub-tennents that they might pursue either of them as they pleased without an Arrestment or any Diligence and were alwayes preferable for their Tack-dutie to any other Creditor of the principal Tacksman It was answered that Custom was not in the case of Rents of Lands wherein their is tacita hipotheca and that the principal Tacks-man was only their direct Debitor and the Sub-tacksman paying to the Principal Tacksman or which is equivalent to his Creditor is for ever free and the Town of Edinburgh hath secured themselves by taking Caution of the Sub-tacksman The Lords found the Town of Edinburgh preferable for their Tack-dutie and that they had immediat Action against the Sub-tacksman unless he had made payment bona fide before that they might exclude any other Creditor of the Principal Tacks-man for their Tack-dutie George Baptie contra Christian Barclay Eodem die CHristian Barclay having pursued George Baptie before the Commissares of Edinburgh for Solemnizing Marriage with her because he had gotten her with Child under promise of Marriage as was instructed by his Bond produced
Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ— and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâ—ded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ— in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâ—shabilitation whereupon it was founded the Defenders Tack following thereuponâ— falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ— 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ— and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aâ—nualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ— they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. 〈…〉 pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâ—s Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ— fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâ—ct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâ—thousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debâ—t The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ— for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because
being for nineteen years without consent of the Patron The Defender answered that albeit both Parties were in acquirenda possessione yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat and therefore unless these Teinds have been Transmitted from the Parson of the Paroch by long Possession or Mortification they are his and the Kings Gift alone cannot take them from his but here the Parson has been in Possession by Setting the Tack produced which is sufficient as to Possession albeit it were null by Exception as it is not and the nullity thereof is only competent to the Person of the granter and not to this Pursuer The Lords found the Kings Gift and Decreet conform with Institution and Collation was not sufficient unless either the Mortification of these Teinds or the Prebenders Possession were instructed Mr. Walter Caut contra Iames Loch Eodem die MR Walter Caut having pursued Iames Loch and his Mother as Tutrix for her Interest for the Mails and Duties of some Appryzed Lands and the quantities being referred to the Tutrix Oath she refused to Depone alleadging that she had forgotten the quantities whereupon the Pursuer craved her to be holden as confest upon the Rental given in by him as if she had acknowledged the same The Lords found she could not be holden as confest being not the Party but Tutrix but they found that she might be forced to Depone by Horning and Caption as other Witnesses Alexander Monteith contra Anderson Iune 28. 1665. THere being mutual Reductions betwixt Monteith and Anderson the former having Right to an Appryzing led in Anno 1619. and the other Mr. Iohn Anderson having adjudged in Anno 1656. Mr. Iohn Anderson insisted on this Reason that Monteiths Apprizing proceeded was on a Sum of 5000. Merks due by Iames Nisbet the common debitor to Gilbert Gourlay after that Iames was Rebel at Mr. Iohn Andersons authors Instance after which no Bond granted could prejudge the other Creditor having used Diligence before but the Bond is null by the Act of Parliament 1621. against Bankrupts It was answered for Monteith that that Act was only against Fraudulent Dispositions between confident Persons without Cause onerousâ— but here a Bond of borrowed Money was onerous and no man was thereby hindered to borrow Money Anderson answered that the Narrative of the Rebells Bond bearing borrowed Money could not instruct against a Creditor using prior Diligence This the Lords Repelled Anderson insisted upon this Reason that Gourleys Bond was granted by Iames Nisbet Iames and William Arnolds all Conjunct Principals without a Clause of Relief and this Bond was assigned by Gourley with this express Provision that no Execution should proceed thereupon or upon the Bond or Inhibition against the Arnolds and so if the Assigney had been pursuing Iames Nisbit for all he might have answered that the Assigney had accepted his Assignation with this provision that Iames Nisbet could not use Execution against the other two Co-principals and therefore he being excluded from his Relief could be only lyable for his third part for he would not have subscribed the Bond but upon consideration of his Relief Monteith answered that all the three principals being bound conjunctly and severally the Creditor might renounce all Execution against two of them and yet crave the whole from the third and there was no more done in this case and albeit there be no Clause of mutual relief exprest yet hoc in est de natura rei So that albeit Nisbet by vertue of the Assignation thought it had been transferred to him could not have pursued the two Arnots yet by the obliegement of mutual Relief implyed he might not as Assigney but as coreus debendi Anderson answered that if the Clause had born only a Provision that no execution should pass upon the Assignation it might have been consistant but it bears that no Execution should pass upon the Assignation or Bond. The Lords found that the Obliegement of mutual Relief was implyed where parties were bound conjunctly and severally albeit not exprest and that the Provision related only to the Bond quantum ad creditorum and did not restrict the implyed obliegement of the Co-principal and therefore repelled this Reason also Robert Keill contra Iohn Seaton Iune 28. 1665. GEorge Seaton as principal and the said Iohn Seaton his Cautioner having granted Bond to Robert Keill and being Charged thereupon both did suspend and having alleadged payment they succumbed and were Decerned Iohn Suspends again and raises Reduction upon minority and lesion The Charger answered First That this Reason was competent and omitted in the former Decreet 2ly That proponing payment did homologat the Debt as if an Heir proponed payment he would not be admitted fo renounce thereafter or to deny the passive Title The Suspender answered that the former Process being in a Suspension nothing was competent but what was instantly verified and so minority and laesion was not competent The Charger answered that the Decreet of Registration was turned in a Libel as being Registrat at the Assigneys Instance not having Intimat during the Cedents Life and at that time the Suspender had raised his Reduction and so it was competent The Suspender answered that he was not oblieged to insist in his Reduction and that the reasons thereof were not proper even in an ordinary Action but only by a Reduction It was furder alleadged that competent and omitted took no place in Suspensions The Lords had no regard to the last alleadgence but repelled the alleadgence upon homologation and upon competent and omitted in respect that minority and laesion is neither competent by way of Suspension or exception but by way of Action of Reduction wherein the Suspender was not oblieged to insist Iames Pitcairn contra Isobel Edgar Iune 28. 1665. UMquhil David Edgar by his Contract of Marriage provided 4000. merks to be payed by him and his Heir of the first Marriage which failling any other his Heirs to the Bairns of the second Marriage The portion of the Daughters payable at their age of 18. and the Sons at 21. with five merks yearly of annualrent after his death for the Childrens subsistence Isobel one of the Children having married after her Fathers death Iames Pitcairn her Husbands Creditor pursues for the sum as belonging to the Husband jure mariti It was answered that the sum was Heretable bearing Annualrent and the Term of payment of the Annualrent was come before the marriage and therefore it did not belong to the Husband jure mariti It was answered that it was not properly an Annualrent but an aliment of five percent and that the Term of payment of the Annualrent was after the Act of Parliament 1641. declaring such Bonds moveable and albeit the Fisk and Relict be there excluded yet the jus mariti is not but is only added by the Act 1661. The Lords found that seing this Provision bear Annualrent whether more or less and that the marriage was
after the Term of payment that it was Heretable and fell not to the Husband jure mariti but only the Annualrents thereof till his death albeit there was no Contract of Marriage nor a Tocher and that the Husband had after the marriage given some provision to the Wife Mr. George Norvel contra Margaret Hunter Iune 29. 1665. MR. George Norvel having Apprized certain Lands pursued for Mails and Duties against Margaret Hunter Possessor she compeared and proponed a Defense that she stood Infeft in the Lands by a Right from her Husband before the Appryzing but for proving thereof she only produced her Seasine Which the Lords found not to prove without a Warrant and therefore Decerned She Suspends and now produces her Contract of Marriage as the Warrant of the Seasine and offers to make Faith that she had found it out since the Decreet And farder alleadged that through neglect of the Advocats or Clerks her Defense was not proponed no ways acknowledging the quantities libelled which she offers to prove to be exorbitant It was answered first that praetextu instrumentorum de novo repertorum sententiae non sunt retractandae 2ly The Contract produced is not the Warrant of the Seasine but a Bond granted for Implement of the Contract and relating to the Seasine The Lords Reponed the Suspender as to the circumduction of the Term she making Faith c. and found the Contract of Marriage a sufficient Adminicle to astruct the Seasine seing it related to a Bond for the same Cause but refused to Repone her as to the quantities Heretors of the Miln of Keithick contra Feuers Eodem die THe Heritors of the Miln of Keithick pursues certain Feuers for abstract Multures who alleadged absolvitor because they are Infeft ab eodem authore without astriction before the Pursuer It was replyed the Pursuer is Infeft in this Miln which is the Miln of the Barony and per expressum in the Multures of the Lands in question and offers to prove that there is a distinct in-sucken Multure and out-sucken Multure and that the Pursuer has been in Possession of the In-sucken Multure these 40. years bygone out of thir Lands Duplyed the Defender offers him to prove that the Possession has been Interrupted by his going to other Milns frequently and without any challenge or Sentence against them And seing the coming to a Miln is but voluntatis unless they enacted themselves so to do And that the Pursuers Infeftment though expresse was latent and unknown to the Defender all that is alleadged cannot infer an astriction The Lords Repelled the Duply and thought that going to other Milns sometimes as is ordinar in all Thirlage was no sufficient Interruption if they came ordinarly to this Miln and payed in-sucken Multure and therefore found the Reply relevant Richard Thorntoun contra William Miln Eodem die THorntoun as Assigney by Patrick Seaton having obtained Decreet before the Baillies of Edinburgh against William Miln he Suspends and alleadges Compensation upon a Compt due by the Cedent and a Ticket subjoyned by him acknowledging the Compt to be due subscribed before Witnesses which must prove against this Assigney It was answered that the Ticket wanted a date and so could not instruct it self to be anterior to the Assignation It was replyed that it was offered to be proven by the Witnesses insert that it was truly subscribed before the Assignation Which the Lords sustained Stevenson contra Crawfoord Iune 30. 1665. STevinson being surrogat Executor dative ad omissa and having licence to pursue insists against Crawford for a Debt of the Defuncts alleadged omitted forth of the principal Testament The Defense was no Process until the Executor Dative ad omissa be Confirmed but he cannot insist upon a Licence to pursue because the principal Executor having made Faith that the Inventar given up by him is a full Inventar any that crave to be Dative ad omissa are never admitted but upon certain knowledge and so must Confirm and gets no Licence The Lords Repelled the Defense especially seing the Pursuer was a Creditor Younger contra Iohnstoun Eodem die AN Porteous Merchant in Edinburgh having died Infeft in several Tenements in Edinburgh above 50. years agoe his Relict possessing them as Liferenter to this time Shortly after his Death one Patrick Porteous was Served nearest and lawful Heir to him and thereupon Infeft so that his Right came by progress to Iohnstoun 40. years after Younger takes a Right from one Stephen Porteous residenter in Polland and gets him Served nearest Heir to the Defunct and thereupon raises Reduction of the first Retour and all the Infeftments following thereupon Defense absolvitor because the Defenders Author being Served Heir 40. years before the Pursuers Authors Service It is prescribed and likeways being Infeft 40. years since all quarrel against the Infeftment is prescribed For the first Point they condescend upon the second Act of Parliament anent Prescription of the Reduction of Retours which bears that if they be not pursued within 20. year they shall never be quarrellable thereafter The Lords having considered this case at length most part thought that the Retour could not prescrive by the first Act of Parliament because it excepted Minors and absents out of the Countrey which they found not to be meaned of Absents Reipublicae causa but of any absence nor that it fell not directly within the second Act which bears expresly Retours to have been reduced thereafter should be only reduceable within twenty year Others thought the Act might not be extended but bearing expresly to the future it could not be drawn back and the Act of Prescription 1617. meets not this case for if under the prescription of Actions not pursued within fourty year Serving of Persons to their Predecessors Heirs were comprehended it would impede any Person to Serve themselves Heir to any Defunct after fourty year which is yet ordinar and as to the Infefment they fand that it fell not in the Case of the Act of Parliament 1617. because it was not cled with Possession in respect of the Liferenters life whose possession behoved to be the possession of the true Heir of her Husband But the Lords did not decide it seing the Case was rarely occuring and Johnstouns Infeftment very old unquarrelled and recomended the parties to agree Mr. James Nasmith contra Alexander Bower Iuly 1. 1665. THis being a concluded Cause a Question arose upon the Probation an accompt being produced between two Merchants referred to Bowers Oath that it was his hand writ and yet resting he deponed it was his hand writ but not resting The question arose whether he behoved to condescend and instruct how it was payed because though the accompt written with his hand unsubscribed was of it self sufficient Probation the quality was not competent but he behoved to prove payment it being alleadged that Merchants hand writ is sufficient and that a Note upon the back of a Bond or foot of
the Liferenter dyed during the Minors Minoritie he might return to the possession in the same way as if the Liferenter were in possession but as for the tollerance now the Liferenter having entered by the Liferent Right and it being reduced in favours of the Pursuer as the Minor could not thereby attain possession so neither can he give tollerance to defend the Liferenter The Lords repelled also this second Defense Patrick Urquhart contra Thomas Blair Eodem die PAtrick Vrquhart having charged Thomas Blair upon a Bond granted by him and William Young as co-principalls Thomas Blair Suspends and alleadges that William Young has payed the whole It was answered that this was not instructed and therefore not receivable being in a Suspension It was answered that though in a Suspension yet a terme is always granted where it is another mans Right It was answered that the Suspender is in hazard of breaking and has not found a good sufficient Cautioner and therefore if he get delay he ought to give better Caution It was answered that he had found Caution who was accepted and he was oblidged to do no more The Lords ordained him to make faith de calumnia upon the Reason but would not put him to find new Caution Robert Scot contra Silvertounhill Eodem die RObert Scot pursuing a Poynding of the Ground for an Annualrent Silvertounhill compeared and alleadged possession by vertue of a prior Annualrent and that the Pursuers Infeftment was base not cled with Possession For proving Possession Robert Scot produced discharges granted by the Annualrenter to the Hetetor for the time for himself and in name of the Tenents which had Witnesses But designed not the Writers name and being alleadged to be null for want thereof The Lords ordained Scot to condescend upon the writer of the discharge in respect the Annualrent did extend to 80. lib. and it did prefer one Annualrent to another Johnstoun of Scheens contra Alexander Brown Eodem die JOhnstoun being pursued to remove from certain Lands It was alleadged no Process because all Parties having interest were not called viz. The Defenders wife in respect he possest but by her Right jure mariti and she was not warned Which the Lords found relevant Mr. Thomas Johnstoun contra Mcgregor Iuly 19. 1665. MR. Thomas Iohnstoun having obtained the Gift of Bastardie of one Mcgregor and declared in general insists now in his special Declarator against Patrick Mcgregor for 2000 merks belonging to the Bastard It was alleadged absolvitor because there was a Gift granted in the Usurpers time and declared whereupon the Defender had transacted with the Donatar and satisfied him and obtained his discharge It was answered non relevat because in the Act of Parliament confirming Judicial Precedor under the Usurpers Gifts of Bastardry and all following thereupon are excepted so that the Defender had no Defense in the point of Right and as for his bona fides it only relevant for what was truly payed but not for what was in his hand The Lords repelled the Defense in respect of the Reply Mr. James Winerham conra Lady Idingtoun Iuly 19. 1665. MR. Iames Winerham pursues the Lady Idingtoun personally for Feu-Duties out of certain Lands Liferented by her It was answered non relevat for any years before the Ladies possession because Feu Duties may be Pursued either really by poynding of the Ground or personally against the Intrometters with their profits and because the Feu-duties are as the yearly Rent yet that cannot be extended further than during the years the Possessors intrometted The Pursuer answered that the whole profits being lyable for the whole Feu-duties whether of that or preceeding years the Lady was lyable not only for the years of her possession but for bygones The Lords repelled the alleadgeance and found the Lady lyable personally only for the years of her possession Ryce Gum contra Mckewn Eodem die RYce Gum having obtained Decreet before the Baillies of the Cannongate against Mckewn to repone him to an Assignation he Suspends on this Reason that the Decreet was null wanting Probation proceeding only upon the alleadged judicial confession of the Suspender without proponing any defense acknowledging the Lybel and succumbing in the Defense but simply confessing the Lybel which cannot prove against him being under the hand of an Clerk of an Inferiour Court only without the Suspenders subscription or oath Which the Lords found relevant Mr. Robert Dickson contra Mr. Mark Ker. Iuly 21 1665. THere being a competition betwixt Mr. Robert Dickson and Mr. Mark Ker as both having the Gift of the Escheat of Hoom of Garden both past the Seal in one day Mr. Robert Dickson had past in Exchequer long before and his Summons was raised two dayes before his Gift was Sealed and so was not a Regular Diligence He alleadges Mr. Mark Kers was more irregular because being a Declarator his Summons was not upon 21. days It was answered the Summons was priviledged It was Replyed that the priviledge was granted periculo petentis upon a common Bill which passes without observation The Lords considering that their Gifts were both past in one day and that there diligence was so near conjoyned the Gift and declared them joyntly Spreul contra Miller Eodem die BArbara Miller having left two Legaces and named William Wilson her Executor and universal Legatar he nominats his Wife and one Giffin his Executors Spreul having right to the two Legacies pursues the Relict and Executors of Wilson who was Executor to Barbara Miller for payment of the Legacies He alleadges absolvitor because the first Testament was not Execute 2ly The special Legacies must be abated proportionally with the general Legacies The Lords repelled both the Defenses and found the general Legacie not to come in pari passu with the special and found that the Executor of the Executor was lyable unless he could alleadge that the first Executor had done diligence and had not recovered or was exhausted Laird of Ludquharn contra Laird of Gight Iuly 21. 1665. THe Laird of Gight having Married Ludquharns Daughter who remained in her Fathers Family and brought forth a Bairn to Gight and dyed Ludquharn the Childs Guid-sir keeped her in his Family several years and now pursues Gight for her Aliment who alleadged absovitor because the Pursuer never having required a promise of this Aliment nor desired the Defender to take home his Daughter It must be presumed that the Pursuer did it animo donandi for his own Oye The Lords found this Defense relevant for all years preceeding the intenting of this Cause Thomas Rew contra Viscount of Stormont Iuly 22. 1665. THomas Rew pursues a Reduction of a Decreet obtained by the Viscount of Stormont who alleadged no Process because the Citation was not within year and day of the Summons the warrant thereof which bears to cite the Defenders to compear the day of next to come The Lords found the Defense relevant Johnstoun contra Tennents of Achincorse
this Case is as favourable because the Reversion was only to the Father in his own life and therefore the Son endeavoured to hinder him to Redeem by taking Right to this Appryzing It was answered that the Case was not alike in a Conventional Reversion as in a legal And that the Appryzing led against the Father in his life would perpetuat the Reversion and that this Case was unfavourable where the Father intended to frustrate his Heir in favours of the Wife of the second Marriage to whom he had assigned the Reversion The Lords having upon the first report considered the favourableness of the Sons Case sustained the Defense but afterward upon Bill ordained them to be heard again in presentia and having heard them The Lords were of different opinions so that that came not to a Vot But the Lords before answer ordained the Wife to insist upon her Right who alleadged that she might Redeem ad hunc effectum to enjoy the benefit of her Liferent Right after her Husbands Death It was answered First That she wanted the concourse of her Husband 2ly That her Assignation was not intimat It was answered First Her Assignation was Registrat in the Register of Reversions conform to the Act of Parliament Which Registration being publicandi causa needed no intimation 2ly That she had a Disposition in Liferent by her Contract of the Lands which carried omnejus in the Disponer as to the Liferent Right during her Life and so carried the Reversion though not exprest and her Seasine being registrat it was equivalent to the Registration of the Assignation The Lords sustained the Wifes Interest and declared in her favours for her Liferent use and found the Disposition with the Seasine Registrat and the Assignation also Registrat sufficient Cheisly contra Cuthbert Eodem die CHeisly Charges Cuthbert for his Prentis-fee Who suspends and alleadges that he was set Prentise to him as Apothecary and that he deserted that Employment and became a Drogeist and thereupon the Suspender left him It was answered that the breeding of him as a Drogeist was sufficient and that he now practised as Apothecary and Cherurgeon The Lords found this answer not Relevant the Suspender being set to him as Apothecary to make Drogs and not as a Drogeisi that buyes Drogs as to the time after he changed But the Charger having further offered to prove that he constantly in his Chamber makes as well as sell Drogs the Lords found it Relevant Richard Cunninghame contra Duke of Hamiltoun Eodem die RIchard Cuninghame pursues the Duke and Dutches of Hamiltoun for payment of a Bond granted by the late Duke which being produced appeared to have been blank in the Sum Date and Creditors Name The Defenders alleadged the Bond was null as wanting the Designation of the Writer It was answered that they did now Design him which has been alwayes allowed by the Lords It was answered that though the Lords have done so ex officio Yet in a case of this nature where the Debt is so old never mentioned before and the Bond in the substantials blank in which case the Lords ought to keep by the express words in the Act of Parliament that such Writs are null and not to be supplyed by an equivalent The Lords Repelled the Defense and admitted the Designation Hellen Hill contra Maxwels Eodem die IN an accompt and reckoning between Hellen Hill Relict of Iohn Maxwel in Glasgow who was one of the Tutors named by Iohn to his Bairns and Mr. Robert and George Maxwels his brethren who succeeded the Daughters being dead Iohn by his Testament leaves his two Daughters and failing of either of them by Decease to the other his universal Legatars one of the Daughters dyed Pupil and the other shortly after her age of 12. years nominat the said Hellen her Mother universal Legatrix whereby Hellen craved the universal Legacy of both the Daughters It was alleadged that the last Daughter not having Confirmed her self Executrix to the first the first share was never established in her Person and so could not be Transmitted by her Testament but belonged to the nearest of Kin of the first Daughter viz. The saids Maxwells It was answered That this being a Substitution of each of the two Daughters to other nominatim by the death of the one it accrest into the other ipso facto without Confirmation as in the case of Bonds of Provision payable to the Father and by Decease of him to such a Bairn named albeit the Father be Fiar and the Bairn but Heir substitute it needs not Confirmation but the Bairn may summarly charge or pursue The Lords found no need of Confirmation but that it did accresce to the second Daughter upon the death of the first and so was carried by the seconds Testament In this account Mr. Robert as Heir pursuing for the Heretable Bonds The Tutrix answered that she ought to have allowance of what was wared out upon repairing of the Tenement in Glasgow It was answered that she as Tutrix ex officio was oblieged to exhaust the Moveables first one Person being both Heir and Executor and not to exhaust the Heretable Bonds that bore Annualrent and to let the other lie unprofitable and now to apply it to her own use by her Legacy It was answered That it was employed upon the Heritage and so was profitable to the Heir only being employed upon the House and that by a Warrand the Heir being then under Tutors to repair it out of the first and readiest of the Defuncts Estate The Lords found that Article Relevant to be deduced out of the Heretable Estate Elizabeth Anderson contra Andrew Cunninghame December 7. 1665. ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson It was alleadged by the Husband that his Wifes share of the moveables was exhausted It was answered That he having confirmed his Wifes Testament and given up the Debts due by him therein and made Faith thereon he cannot now be admitted to adduce any other Debts especially being so recent before the Testament within three or four years It was answered that he had only made Faith upon the Inventar of the Goods belonging to him but not of the Debts due by him which were only given up to abaite the Quot and albeit it may be presumed that he knew and remembred his own Debt yet presumptio cediâ— veritati seing the Creditors now produce their Bond instructing the Debt and crave preference Which the Lords found Relevant vid. Iune 9. 1666. Katharin Smith and William Duncan contra Isobel Robertson Eodem die KAtharin Smith and William Duncan having apprized from Isobel Robertson and Iohn Wilson all Right they had to a Tenement under which fell the Liferent-right of Isobel Robertson his Wife jure mariti Pursues the said Isobel for payment of the Mails and Duties that she had uplifted and of a part of the Tenement that she dwelt in her self She alleadged first that her Husbands
it is enough that the Rebel is Cited and none would be prejudged who were not Cited and any may compear that pleases for their Entress The Lords Repelled the Defense and Forefault the amand given thereupon as being contrair to the common Custom Laird of Philorth contra Lord Fraser Iune 28. 1666. THe Laird of Philorth pursues a Declarator of Property of Lands lying about the Kirk-yard of Rathan and particularly that a part of the Land within the Kirk-yard-dyke is his Property and that therefore the Dyke ought to be Demolished and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke It was alleadged for the Defenders first absolvitor because the Pursuer had homologat the Right of the Kâ—rk as to the Kirk-yard-dyke and all within it in so far as he had buried the Dead of his own Family in the bounds in question and likewise his Tennents The Lords found the former part Relevant but not the latter unless he had been present at his Tennents Burials or otherwise had consented The Defenders further alleadged Absolvitor because the Minister and Parochioners of Rathan had possest the Kirk-yard and Dyke peaceably by the space of 30 years which is sufficient to give them a Right upon this Point There occurred to the Lords these Points first Whether less Possession then 40 years could Constitute the full Right of a Kirk-yard 2ly VVhether less Possession by burying of the Dead could take away anothers Property And whether simply or so as to give him Damnage and Interest 3ly VVhether an Interruption made after the Building of this Dyke by the Pursuers raising Summons shortly thereafter could operate any thing if the Defenders had bruiked since the Interruption by that space that would have been sufficient to Constitute a full Right before Interruption Many were of the opinion that Kirk-yards have as great priviledge as any Kirklands and that in Kirk-lands 10. years Possession before the Reformation or 30. years after according to the old Act of Sederunt of the Lords did Constitute a full Right as well as the long Prescription in other Cases and likewise that in Ecclesiasticis 13. years Possession did Constitute a Right decennalis triennalis possessor non tenetur docere de titulo and that accordingly the Lords were in use to decide in all such Rights But the Point to be decided was Whether Interruption once used endured for 40. years so that albeit 13. years would suffice yet the Interruption long before these 13. would alwyse be sufficient till the Interruption did prescrive by 40. years wherein many were in the Negative that as in a possessoy Judgement on 7. years if Interruption were alleadged it was always a relevant Reply that since the Interruption the Defender has Possest 7. years without Interruption so if 10. or 13. years be sufficient to the Kirk no Interruption preceeding but only such as are done during these years can be sufficient for if 13. years will take away the Solemnest Rights and Writs much more may it a Citation Others were for the Affirmative on this ground that in the short Prescription of 3. years in Spuilzies c. Interruption once used serves for 40. years so it must in this case for he that once Interrupts is alwise holden as continuing in that Interruption until it Prescrive or be otherwise past from But it was answered that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae Church-men seldom have or keep Evidents albeit in other Cases Interruption would only prescrive in 40 years Yet the plurality found that after Interruption no less then 40. years Possession was sufficient but reserved to the Lords the Question anent the ground in so far as dead were buried therein after Probation Iohn Mcmorlan contra William Melvil Eodem die WIlliam Melvil and one Hatter an Englishman both Residing in England gave Bond to Gawin Lourie Residing there after the English Form who Assigns it to Iohn Mcmorlan Melvil Suspends upon this Reason that he had made payment to Gawin Lourie the Cedent which he offered to prove by Gawins Oath and which could not be refused because he offered to prove that it was the Custom of England that the Cedents Oath can never be taken away by Assignation as it is in Scotland but that Assignations are only as Procuratories and that payment might be proven there by Witnesses to take away Writ It was answered that the Law of Scotland must regulate the case because the Assignation is according to the Scots stile and the Debitor albeit Residing in England was a Scots man and knew the Custom of Scotland The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England and so that payment might be proven by witnesses or by the Cedents Oath yet so as the Cedent could not be holden as confest but the Debitor or Suspender behoved to produce him and move him to Depone Wherein the Lords so Declared because they were informed that the Suspender proponed the Alleadgeance because the Cedent was Quaker and would not swear at all Duke of Hamiltoun contra Duke of Buckcleugh Eodem die THe Duke of Hamiltoun as Collector of the Taxation having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith He Suspended upon this Reason that the King Possest these Lands Himself the years of the Taxation and so cannot demand them from the Suspender who is a Singular Successor The Charger answered that he had the Taxation from the King for a Cause Onerous viz. a Debt The Lords found the Reason of Suspension Relevant Dougal Mcpherson contra Sir Rory Mcclaud Iune 29. 1666. DOwgal Mcpherson pursues Sir Rory Mcclaud for payment of a Sum upon his promise and the Summons bears a Warrand to Cite him at the Mercat Cross nearest the place of his Residence being in the lsles whereupon the Pursuer craved him to be holden as confest The Defender alleadged that he was not Personally apprehended and so could not be holden as consest and that this Citation at the Mercat Cross was periculo petentis and not to be Sustained in the time of Peace when there was no Trouble in the Countrey The Lords found that Warrands for such Citations ought not to be granted by common Bills of course but only by the Lords upon special Bills in presentia but seing the Defender compeared they allowed his Procurator a long time to produce him Ianet Kid contra Dickson Eodem die JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar made by her Father on this Ground that the Disposition is subscribed but by one Nottar and one Witness and the Charter by one Nottar and two VVitnesses and so is null by the Act of Parliament requiring two Nottars and four VVitnesses in VVrits of importance It was answered that the Tenements being small the price of one exprest being 200. merks and the other 300. merks the foresaids two
VVrits were sufficient cled with many years Possession in the Defuncts time who never challenged the same 2ly They are Established by the Seasine given propriis manibus conform to the Obligement of the Disposition and Charterby a Town-clerk Registrat in the Town Books The Lords having Ordained the Defenders to condescend upon any Adminicles they had for astructing the verity of the Subscription they condescended only on seven years Possession which the Lords found was not sufficient to Establish the Right without Reduction but if the Defender had condescended on 40. years Possession The Lords Declared they would hear them Dispute whether that could be sufficient or not Chalmers contra Bassily Iune 30. 1666. MR. William Chalmers being to go abroad grants a Factory to Bassily bearing to endure untill he returned and after Discharged the same in VVrit he now writes a Letter to his Father bearing That he would do any thing he could to recal and reduce that Factory whereon a Reduction was raised on this Reason That all Factories of their Nature are Revockable at the pleasure of the Constituent albeit they contain a Term of endurance It was answered that this Factory containing such an endurance cannot be Revocked till the Term come 2ly Albeit Factories be Revockable yet it must be re integra but here the Factor hath advanced considerable sums of Money upon consideration of the Factory The Lords found the Factory Revockable the Factor being always refounded of what he profitably Expended upon consideration thereof before he quite Possession Martin Stevinson contra Dobbie Eodem die DObby being Tennent to Iames Stevinson of certain Lands he gets an Infeftment of Annualrent out of the same Lands before Whitsonday but the first Terms payment of the Annualrent was Martinmas thereafter after Whitsonday and before Martinmas Martin Stevenson apprizes the Land and Charges the Superiour and thereupon pursues for Mails and Duties Dobby excepts upon his Infeftment of Annualrent The Pursuer answered that the Infeftment was base and before it was or could be cled with Possession he had Charged the Superiour which was equivalent to a publick Infeftment The Defender answered that a publick Infeftment interveening before the first term of payment of the Annualrent did not prejudge the base Infeftment which could not be presumed to be privat or simulat for want of Possession till the Term came at which Possession might be attained or pursued for 2ly The Defender being in Natural Possession from the very Date of his Seasine intus habet and he may retain his own Annualrent which begins to become due from the Date of his Seasine de momento in momentum albeit there be a Term appointed to pay accumulative so that as the getting payment from the Possessor of any part of the Annualrent or his Obligement for the same would be a Possession sufficient so the Defender having the same in his own hand as Possessor it is equivalent The Lords found this Member of the Defense Relevant and had no necessity to decyde the other Point whether the interveening publict Infeftment before the first Term would exclude the base Infeftment without Possession wherein they thought that there was great odds if the Appryzers Infeftment or Diligence had been before Whitsonday in respect the first Term of the Annualreni was not the next Term after the Seasine and so if it might pass one Term by the same Reason it might pass ten Terms and be valid because in neither Case could Possession or Action proceed thereon and therefore might be suspected of Simulation so that if the Appryzers Diligence had been before Whitsonday the Annualrenter could have no Right to that Term and so the Appryzer would attain to the Possession and could hardly be excluded thereafter Stevin contra Boyd Eodem die STevin pursues his Mother as his Tutrix and Iohn Boyd as Husband and Factor for an Accompt of his Fathers means In which Accompt these Points were reported First There was some old unfashionable Ware in the Defuncts Inventar not Sold whereof the Tutrix offered to the Pursuer his two third parts in specie The Pursuer answered that the Tutrix had priced the same and behoved to accept them at that price and that she ought to have done Diligence to have Sold them and Executors are never liberat but upon payment of the price The Lords found that albeit Executors are comptable to Creditors always for the price yet not so to the Children and therefore if it was visible that the Ware was old and could not be Sold wherein the Tutrix was at the loss of her Third They found the same should be accepted but in that Case they found the Tutrix lyable for any greater price she got then that contained in the Testament The second point was what Diligence the Tutrix should be lyable for whether Registrat Horning were sufficient or if Poinding and Apprizing behoved to be used The Lords found that Horning would not be sufficient in all Cases but according to ehe Condition of the Debitors and therefore ordained the Parties to condescend thereon Fleming contra Fleming Iuly 3. 1666. DAm Elizabeth Fleming being Executrix to her Husband and Tutrix to her Children gave out the sum of 6000. merks to the Lord Cardross and took a Bondâ— bearing the same payable to her self in Liserent and to Malcolm and Andrew Flemings and failzing the one by Decease to the other This Bond by a former Interlocutor was found not to be altogether a Donation but it satisfied the two Bairns Portions pro tanto Malcolm being now dead Andrew the surviver claimed the sum by the Substitution Thereafter the Children as Executors to Malcolm claimed the same on this ground that this sum not being found a Donation but to be given in satisfaction of of Andro's Portion the Tutor could not Substitute any Heir to Malcolm but behoved to remain as it had been lent as Malcoms own means in which case it would belong to his whole Brethren and Sisters and not to Andrew only Andrew all eadged that he being Substitute by his Mother who had now Right from the remanent Children she who had Constitute this Substitution could never quarrel the same It was answered for the Mother that she did not quarrel the Substitution but that albeit the Substitution took place Andrew was her Substitute and so was in the same condition as Malcolm so that Malcolms half behoved still to be taken away by Compensation in so far as she was Creditor to Malcolm as if Malcolm were alive It was furder alleadged for Andrew that in such a Clause as this there was no Fiar and Heir but two conditional or alternative Fiars viz. either of the Children that Survived and therefore such Clauses would never make the Substitute Heir to represent the Defunct and be lyable to his Debts The Lords found that by the Clause of Substitution the Person Substitute was Heir of Provision yet not so as to be lyable to the
obtained Decreet cognitionis causa and David being now dead he pursues James Chrystie as now appearand Heir to his Debitor for Adjudication of an Annualrent as belonging to the Defunct Debitor out of the Lands of Bassilie It was alleadged for the Defender absolvitor because that Annualrent was but base never cled with possession and the Defender stands validly Infeft singulari titulo The Pursuer answered that the Defense is not competent hoc loco when the Pursuer is but suo periculo craving Adjudication of his Debitors Right and cannot be forced to dispute the same till after Adjudication he use diligence for getting of the same but this Defense will be Competent whensoever upon his Adjudication he shall pursue The Defender alleadged a Pratique betwixt Sâ—haw of Sornbeg and the Lord Forrester wherein Forresters publick Infeftment was excepted in the Adjudication Yet the Lords shewed no Inclination to follow that Pratique and therefore Repelled the Defense and Adjudged Mr. Iohn Abercromie contra Anderson Eodem die MR. Iohn Abercromie as Assigney having pursued Anderson as Debitor for the Debt Assigned he alleadged no Process because the Assignation was posterior to the date of the Summons and Executions so that the Assignation being his sole Title the Process could not be sustained It was answered that the Defender had no prejudice and that the Cedent concurred It was answered that the Summons was not in the Cedents name and so his Concourse could operat nothing so that the Decreet thereupon would be null For in the like case the Lords last Week in the Cause betwixt David Hamiltoun and Iohn Kennedy and Symintoun Reduced an Appryzing led tvventy years since because the Appryzing proceeded upon a Charge to Enter Heir and some of the Debts vvere Assigned to the Appryzer after the date of the Charge As to which the Lords found the Appryzing null The Lords sustained the Defense and found no Process and had respect to the said Decision of Reduction of the Appryzing which they found to be as is râ—aâ—ed though it was alleadged that after so long time an Appryzer was not oblieged to produce the Letters of Appryzing or Charge to Enter Heir or Executions yet seing de facto these were produced and deduced in the Appryzing and mentioning the dates as aforesaid the same was Reduced pro tanto but there was no debate reported whether it should stand pro reliquo or how far it should extend seing the Appryzer as to the rest offered to prove it satisfied by Intromission Alexander Downy contra Robert Young Nov. 17. 1666. UMquhil Alexander Downy granted an Assignation to his Oye Alexander Downy of tvvo Bonds vvho finding that after his Goodsires Decease Mr. Iohn Hay vvas Confirmed Executor to his Goodsire and had given up these bonds in his Inventar but had not recovered payment He Confirms himself Executor ad non Executa to his Goodsire and pursues the Debitors for payment of the Bonds Compearance is made for Robert Young who alleadges that he is Executor Daâ—ive to Mr. John Hay vvho Execute Downies Testament by obtaining Sentence for payment of their Bonds so that the Bonds vvere no more in bonis of Alexander Downie but of Mr. John Hay and that the Testament being Execute by Decreet there could be no Executor ad non executa to Downie the first Defunct It was answered that the Testament was not Execute by a Decreet unless the Executor had obtained payment especially where the Executor was a meer stranger and was neither nearest of Kin Creditor nor Legatar The Lords found the Testament of Downie Execute by Hay by the Sentence obtained in Hayes Name and therefore found that Alexander Downie the Oye his Confirmation as Executor ad non executa null It was further alleadged that Downie being not only Executor but Assigney by his Goodsire the Assignation though it had been but a Legacy would have been sufficient against Mr. Iohn Hay who is the Cedents Executor and therefore is also sufficient against Young who is the Executors Executor and so represents the first Defunct Downie the Cedent It was answered that Young was not only legitimo modo the Executor but he is also Creditor of the first Defunct Downie in so far as he is Donatar of the Escheat of Iohn Hilstoun and thereupon has obtained Declarator and so is in the place of Iohn Hilstoun to whom umquhil Alexander Downie was Debitor by his Ticket produced whereby Downie acknowledges that he had in his hands Goods worth 6000 pounds belonging to him and Hilstoun in Copartinary and obliged him to be comptable therefore which is anterior to the Assignation granted to Downies own Oye for Love and Favour whereupon he hath Reduction depending against the Assignation as in fraudem Creditorum It was answered that the Ticket in relation to the Copartinary was not liquid bearing only an Obligment to be comptable with express Exception of desperat Debts and others The Lords found that in respect the Debt was not liquid Downie the Assigney ought to be preferr'd and get payment but Ordained him to find Caution that in case Young prevailed he should refound William Blackwood contra Adam Purves Nov. 20. 1666. ADam Purves pursues Reduction and Improbation of two Bonds alleadged granted by him to Ianet Baxter and of an Appryzing led thereon against certain Tenements in Edinburgh belonging to him and craved Certification contra non producta William Blackwood to whom by progress the Right is now come produces the Appryzing and the Extract of one of the Bonds whereupon it proceeded and alleadges no Certification against the Letters and Executions of the Appryzing after so long time the Appryzing being led in Anno 1621. and no Process of Reduction Rais'd till after the year 1650. Which the Lords found Relevant Likeas he further alleadged no Certification for not production of any of the principal Bonds because they were Registrat in the Registers of Session and the Principals were lost The Pursuer answered that there were pregnant Points of Falshood viz. Purves having gone and left the Kingdom in Anno 1618. And having been a Souldier Abroad till the year 1630. and these Bonds and the Appryzing thereon both in one Month and the Bonds granted to a Woman who had no such Estate but the Servant of a Waiter of an evil Fame and one Blair a Witness who was hang'd for Falshood The Lords refused Certification for not production of the principal Bonds but prejudice to the Pursuer to insist in his Improbation by these or other Evidences by the direct manner but they admitted Certification against that Bond the Extract whereof was not produced yet conditionally to a time that the Defender might upon the Adminicle of the Appryzing Insist to prove the Tenor. The Parochioners of Port Supplicant Decem 4 1666 THe Parochioners of Port having built a Manse upon the Gleib to their Minister where there was no Manse before and having valued the same according to the late Act
part to Dame Geils Moncrief who had right to a Terce thereof and to whom Mr. Patrick was only lyable and countable and for a part of the years he was her Tennent and had Right from her It was answered that the Tercer had no compleat Right till she was Served and kend to her Terce which being done after the years in question the Fiar might have Possest the whole till her Service and might have forced the Possessors to pay him so the Appryzer entring in Possession of the whole upon his Appryzing cannot pretend the Right of the Tercer and his taking Tack of her was unwarrantable till she was Served and done of purpose that his Appryzing might not be fully satisfied and so the Legal might expyre which is most rigorous and unjust and offered presently to satisfie the Tercer of her third It was answered that the Service whensoever done is drawn back to the Husbands death and doth but declare and not constitute the Wifes Right like the Service of an Heir The Lords found that Mr. Patrick could not cloath himself with the Tercers Right to cause the legal expyre but found the offer Relevant for besides the favour of the Cause the case is not alike with an appear and Heir whose Right though not declared yet he continues in his Predecessors Possession and none other hath any Interest but the Fiar might possess the whole and exclude the Tercer till she were Served Paul Henrison contra Laird Ludquharn Decemb. 22. 1666. PAul Henrison Indweller in the Island of Helgilland being at the mouth of the Elve fraughted to Scotland by Hamburgers was taken by a Privateer and declared Pryze at Peterhead by the Laird of Ludquharn Admiral Depute there whereupon he addrest himself to the Admiral Court at Leith and obtained Decreet for restoring of his Ship upon compearance Ludquharn gives in a Bill of Suspension of this Decreet and to dispatch the Stranger because it was ordained to be heard upon the Bill Ludquharn alleadged that the Admirals Decreet was unjust because he offered him to prove by Merchants in Edinburgh that Helligilland is a part of the Dominion of Denmark and albeit it be in the present Possession of the Duke of Holstein yet he holds it of the Crown of Denmark and as to that he is Subject to the King of Denmark and therefore the Inhabitants of that Island are in the state of enimity with the King and so lawful Pryze It was answered that the Stranger hath produced a Pass of Sir William Swan the Kings Agent at Hamburgh bearing that he had taken tryal and found the Ship to be free and it being notour and acknowledged that this Stranger is a Subject of the Duke of Holstein who is a Prince of the Empire and in Amity with His Majesty as is declared by a Letter of the King to the Lord Commissioner it must extend to all His present Subjects who are not oblieged to Dispute how he holds this Islands or when he got the Right thereof and his Pass bears him to be a Natural Subject of the Duke of Holsteins and not of the King of Denmark It was answered that the Right of this Island was only in Impignoration and only in Possession of the Duke of Holstein within this ten year The Lords adhered to the Admirals Decreet and Repelled the Reasons of the Bill Tweeddies contra Tweeddie Eodem die UMquhil Tweeddie of having Disponed his whole Estate to his Eldest Son at the same time his Son gives a Bond to his Mother and her Heirs of six thousand merks the Mother being dead the other five Bairns pursues a Declarator of Trust against the Heir that this was the Bairns Provision put in the Name of the Mother and offers to prove the same by the Wryter and Witnesses insert It was answered that Trust was not so probable otherwise all Rights might be inverted by Witnesses whose Testimonies our Law hath Restricted to an hundred Pounds It was answered that much more was to be attribute to Witnesses insert upon whose Testimonies the Parties condescend and confide than to common Witnesses 2dly Albeit Witnesses were not receiveable to prove Trust alone Yet where there are strong presumptions concurring they are admittable even to annul Writs of the greatest importance as is ordinarly used in the indirect manner of Improbations and here are strong presumptions viz. That the Father at the time of this Bond did Dispone to the Defender his Eldest Son his whole Estate without a Reservation of his own Liferent or any other thing and there were five Children beside who had no Provision So that albeit this Bond be conceived to the Wife her Heirs and Assigneys yet cannot be presumed to be intended to have fallen back to the Defender as her Heir The Lords in respect of the presumptions were inclinable to admit the Witnesses but they ordained the Pursuers before answer to what could make a sufficient Probation to adduce such Witnesses as they would make use of for astructing these Presumptions and the Trust. Iames Hoge in Edinburgh contra Iames Hoge in Dalkeith Ianuary 2. 1667. JAmes Hoge in Edinburgh pursues a Declarator of Redemption agaist Iames Hoge in Dalkeith who alleadged Absolvitor because the whole sum contained in the Reversion was not Consigned It was answered there was Consigned the equivalent viz. A Decreet against the Defender for a Liquide sum which behoved to compense It was answered that Reversions being strictissimi juris Compensations are not to be admitted therein otherwayes Wodsetters may be much prejudgeed by taking Assignations from their Creditors and Consigning the same and frustrating them of their Moneys which they had designed for other Creditors and other uses It was answered that this was no Extrinsick Compensation but a Decreet founded upon an Article contained in the Contract of Wodset Upon which consideration the Lords Sustained the Order and Declared Earl of Murray contra Iohn Hume Eodem die THE Earl of Murray pursues Hume his Tennent to find Caution for his Duties or else to Remove Who alleadged Absolvitor because the Earl was Debitor to him in a Sum exceeding all the bygone Rents and this Action hath no place but when there are some years Rent Resting It was answered That the Defender was at the Horn and his Escheat taken and so was manifestly vergent ad inopiam The Lords would not Sustain this Member unless bygones had been owing but Superceeded to give answer till the Compensation were proven Francis Hamiltoun contra Eodem die FRancis Hamiltoun having Suspended a Decreet obtained against him for House-mails on this Reason that his Wife only took the Tack which could not oblige him It was answered that his Wife keeping a publick Tavern was evidently praeposita huic negotio Which the Lords Sustained Another Reason was that the House became insufficient in the Roof and the Defender before the Term required the Pursuer to Repair the same which he did not and the Neighbouring House called
The Tower of Babel falling upon the Roof made it Ruinous It was answered That was an accident without the Pursuers fault and the Tennent ought to pursue these whose Tenement it was that fell The Lords found the Reason was not Relevant to Liberate from the Mail unless the Suspender had abstained to Possesse but found it Relevant to abate the Duties in so far as he was Damnified Oliphant contra Hamiltoun of Kilpoty Eodem die WILLIAM OLIPHANT having obtained a Decreet for Poynding of the Ground against Hamiltoun He Suspends on this Reason that he was neither Decerned as Heir nor Possessor but as appearand Heir to the Heretor and was never Charged to Enter Heir The Lords Repelled the Reason and found this Action being real was competent against the appear and Heir without a Charge William Oliphant contra Hamiltoun Eodem die OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent It was alleadged Absolvitor from the bygones before the Pursuers Right because his author was Debitor to the Defender in a liquid sum equivalent It was answered that the Pursuer was singular Successor and no personal Debt of his Authors could infer Compensation of a real Right against him The Lords found that the bygain Annualrents were moveable and compensable with any liquid Debt of the Pursuers Authors contra Brand. Ianuary 3. 1667. Chapman having left his Pack in custody with Brand In Dundee about ten or twelve dayes after Brand opened the Pack and made use of the Ware The Chapman now pursues him for a Spuilzie who alleadged Absolvitor because the Pack was put in his hands for security of a Debt due by the Pack-man and he being informed that the Pack-man would not rerurn did by warrand of a Baillie in Dundee cause four of the Neighbours Inventar and Price the Ware It was answered non relevat for though the Pack had been impignorat the Defender could not appryze it summarly but behoved to take a Sentence to Poind the same The Lords Repelled the Defense It was further alleadged that there could be no Spuilzie nor Oath in litem of the Pursuer because there was no Violence It was answered that the Oath in litem is Competent whether it were a Spuilzie or a breach of Trust actione deposâ—â— It was answered that the Oath in litem being granted mainly because Parties injured by breach of such Trusts cannot be put to prove by VVitnesses that which is taken from them none being oblieged to make patent his Pack or other privat Goods to VVitnesses yet where there is another clear way to prove the quantities viz the Oathes of the four Persons who opened the Pack there is no reason to put it to the Pursuers Oath especially seing their Inventar is not the eight part of what he claimes The Lords admîtted the Pursuers Oath in litem reserving their own Modification with liberty to the Defender if he thought fit to produce what of the Ware he had and to produce these four Persons that the Pack-man may Depone in their presence Earl of Sutherland contra Earls of Errol and Marischal Eodem die THere being a Decreet of Parliament ranking the Nobility whereby Earl of Sutherland was put after the Earls of Errol and Marischal In which Decreet there is a Reservation to any to be heard before the Judge Ordinar upon production of more ancient Evidents whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking containing an Improbation of all VVrits Patents and other Evidents granted to the Defenders or their Predecessors whereby they are Constitute or Designed Earls they did produce the Decreet of Ranking and the Earl of Errols Retour whereupon the Pursuer craved Certification contra non producta after all the Terms were run The Defenders alleadged no Certification because they had produced sufficiently by producing the Decreet of Ranking and their Retoures and the Pursuer had only produced his own Retoure which was since the Decreet of Ranking so that the Decreet of Ranking was sufficient to exclude all his Titles produced It was answered the Retour being the Sentence of a Court Serving this Earl as Heir to his Fore-Grandsire Grandsires Grandsires Fore-Grandsires Goodsire who is Designed Earl by King Alexander the second It was sufficient in initio litis Likeas he did formerly produce the Original Evidents and which was now in the Clerks hands and might have been seen by the Defenders if they pleased The Lords found the Retoures not sufficient alone and Ordained the rest to be Reproduced and seen by the Defenders Smeatoun contra Crawfoord Eodem die UMquhilâ— Patrick Smeatoun granted a Disposition to Crawfoord his VVife and her Heirs of a Tenement of Land whereupon nothing followed during her Lifetime her younger Brothre Iames Crawfoord Served himself Heir-General to her and obtained a Decreet of Implement against Iohn Smeaton as Heir to his Father and having used Horning thereon obtained Adjudication against Smeatoun and his Superiour and thereupon was Infeft which Right was Disponed by him with consent of William Crawfoord elder Brother to the VVife The said Iohn Smeatoun Dispones the same Tenement to Alexandor Smeatoun and he is Infeft and thereupon pursues a Reduction of Iames Crawfoords Retour and of all that followed thereupon in consequence on this Reason that the Disposition to the VVife belonged not to Iames Crawfoord her younger Brother who was Heir of Line but to William Crawfoord her elder Brother as Heir of Conquest and so the Service was null following thereupon and the Pursuer being first Infeft from Smeatoun he hath the only Right because any Infeftment to William the Heir of Conquest will be posterior It was answered that it was jus tertij to the Pursuer whether the Heir of Line was Served or Infeft or the Heir of Conquest likeas the Heir of Conquest did concur and had consented to the Disposition The Lords found not the Defenses Relevant but considering the Case as Calumnious seing it was but of late cleared by Decisions whether the Heirs of Line had right to Dispositions without Infeftment they did superceed to give answer but ordained the Defender to give in what Evidences he could give of the onerous cause of his Disposition Paul Henrison contra Laird of Ludquharn and Captain Seatoun Ianuary 4. 1667. THe Debate betwixt Paul Henrison and Ludquharn was this day heard again and it was alleadged that the Kings Proclamation declared War against the King of Denmark and his Subjects Ita est the Owners of the Ship are Subjects to the King of Denmark because it is notour that this Isle is a part of the Kingdom of Denmark and till of late was in the same condition as any other of his Territories and albeit the Duke of Holstein have now an Interest by Possession or Infeodation that alters not their subjection to the Crown of Denmark but the same is still presumed unless they will positively prove that the same is alter'd and the Duke of
answered that Inhibitions are personal Prohibitions Restraining the Person Inhibit and the Leiges to Alienat Buy or Sell any Lands in prejudice of the User of the Inhibition and until he be satisfied of the Ground thereof Which Prohibition respecteth the Person Inhibit directly and the Lands but indirectly as they belong to him so that there is no difference whether they belonged to him before or after for hoc ipso that they are his they fall under the restraint and the alienation thereof is to the prejudice of the User of the Inhibition because if they were not Sold they might Appryze the same so that albeit he be not in worse case then he was the time of the Inhibition yet he is in worse case then he would be if the Land had not been sold And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom that infers not but they might and that they would be effectual to Lands thereafter acquired in these shires neither is there any ground to except the Renuncing of Wodsets which are Alienations of the Wodset Lands but the Redeemer before he declare or deliver the Money and take Renunciation he ought to search the Registers and to call these persons who have used Inhibitions for their Interests The Lords found that Inhibitions reached to Lands acquired after the Inhibition but were not clear that Inhibition hindred Renunciations of Wodsets but superceeded to give answer to that Point till the first of June Laird of Dury contra Anna Gibson Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters for twenty thousand Merks of portion a Piece and in case of Decease of any of them her Portion to belong to his Heir-male but upon the Margent there is added that the Portion of the Deceasing should accresce to the Survivers This Dury Brother and Heir-male pursues Reduction and Improbation of this Bond in so far as concerns the Marginal addition upon these grounds that the samine was not Subscribed before the Witnesses insert in the Bond nor insert at that time And that it is written by another Hand then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond and that the Bond bears that the Date and Witnesses are insert by Dury himself yet it does not bear that he insert the Marginal addition which is of greater importance It was answered that Bonds being Subscribed before Witnessâ—s their Testimony reaches not only to the Subscription on the foot but to the Subscription of joyning the Sheets and whole Marginal additions which are as valide as any part of the body unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed and albeit the Marginal addition be of another Hand it is offered to be proven that it is the Hand-writing of Dury himself who insert the Date and Witnesses which is more Solemn then any other writer especially seing the writer was not present or witness but only drew the draught of the Bond and albeit he mentions not the inserting of the Marginal addition but only the inserting of Date and VVitnesses that has been because of the ordinar Stile of Bonds whereof the Date and VVitnesses are filled in by another Hand not being ordinar for these to write Marginal additions and as for the importance or contrariety of the Margent to the Body that is most ordinar especially where the body is but a draught drawen by another Hand who has erred in his intention in the Substitution it was answered for the Pursuer that albeit the Marginal addition should be proven to be Holograph yet unless it were proven to have been truely written and subscribed at the Date of the Bond. It cannot prove that it is of the same Date or of any Date before the Defunct was on Death-bed and so it is null and cannot prejudge the Pursuer as Heir especially seing the Defunct having then no Sons might probably adject this in favours of his Daughters contrair his former Intention which if it should take effect would ruine the Heir-male The Lords having taken the Deposition of the Witnesses insert and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no and that it did appear by inspection that the Marginal addition was by another Hand then that that wrote the body and that it was not mentioned at the conclusion where the Defunct exprest that he himself was Filler up of the Date and Witnesses and nothing was adduced to astruct that it was of a true Date before his taking Bed Vpon all these considerations joyntly the Lords found that the Marginal addition was not of the Date of the Bond and that having no Date of it self it was not instructed to have been done before the Defunct was on Death-bed and so was null as to the Heir but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition but only that all joyntly was sufficient the matter being also accorded amongst the Parties Antrobus contra William Anderson Provost of Glasgow Iune 13. 1667. WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow the Messenger having therewith taken Herbertson in his own House and having required William Anderson present Provost to Concur and put him in Prison and he refusing pursues now the Provost for payment of the Debt The Defender alleadged first that the Lybel was not relevant because it did not subsume that the Rebel was showen to the Defender 2ly The Defender was required at an unlawful time being betwixt eleven and twelve at night 3ly The Defender offered the concourse of the Town Officers 4ly The Army being come to Glasgow that night the Provost was taken up at the time he was required with the ordering of their Quarters which being a publick Service of greater Importance he offering of the Officers was sufficient 5ly This subsidiary Action being but for the Pursuers damnage he can pretend none because the Rebel was Bankrupt and insolvent long before and he was Incarcerat within some few dayes where he remained a long time during which the Pursuer might have Arrested him and the Defender yet offers to put him in Prison in as good case as he then was The Pursuer answered that his Lybel was most Relevant because the Letters being directed to Provost and Bailies of Burghs and if they be required albeit the Rebel be not in their sight they must go with the User thereof to any place within their Jurisdiction which they must do in their own persons and it will not be sufficient to send their Officers and as to the time of requiring any time that men do use to go about their Affairs is sufficient and the Defender was required between
seven and eight at night and albeit it had been later that the Defender might be excusable not to come out of his own House to search yet here he was in the same house with the Rebel and in the next Room to him and heard the noise of these that deforced the Messenger which was done by the Towns Officers neither can any pretence of Ordering of Quarters stop the Execution of the Kings Letters which might have been done with so little diversion and the Quarters might have been Ordered by the Baillies The Lords found the Libel Relevant but found the Defenses joyntly also Relevant viz. The Ordering of the Quarters of the Army the Ordering of the Officers and the offer now to put the Rebel in Prison in as good case and the time of night Harner contra Haitly Eodem die HArner pursues Haitly as representing her Husband for proving the Tenor of her Contract of Marriage who alleadged no Process because there was no Adminicle produced in write which was most necessar in any Case but especially in this Case where the Tenor of the Contract was extraordinar Constituting the one half of the Fee of the Husbands Estate to the Wifes Heirs failzing the Heirs of the Marriage The Pursuer answered that albeit Adminicles in Writ were ordinarly required especially in Writs that use to be taken away by Redelivery or Cancelling as Bonds c. Yet the intent of Adminicles is to render it probable that such a Writ was and thereby to give ground to admit Witnesses to prove rei gestae veritatem But here there was as strong grounds of probability there being a Marriage of a Landed Man and the Copy of the Contract taken of the Writer thereof Iohn Nicol his Style Book he and his Servants being Witnesses who are yet alive and the Tenor offered to be proven by them whereas other Tenors use to be proven by Witnesses that saw the Writ though they were not the Witnesses insert Likeas the Husband having taken the Right of an Infeftment for a sum payable to him and his Wife and the Heirs betwixt them which failzing to his Heirs he took a Ratification thereof from the Pursuer which could have no intent if in case of failzie of Heirs of the Marriage the half had not been appointed to return to her Heirs Likeas it is offered to be proven by Witnesses that the Husband acknowledged that he had the Contract in custody from his Wife The Defender answered that our Law had rejected Probation by Witnesses in matters of Importance and therefore Tenors are only Sustained when their Probation is partly by Writ and partly by Witnesses neither is any other probability sufficient and it is offered to be proven that the Husband Infeft his Wife in his Houses of a considerable value without any mention of a Contract of Marriage The Lords refused to sustain the Libel without Adminicles in Writ and assoilzâ—ed albeit it was also offered to be proven that the Husbands whole means came by the Wife Patrick Wat contra William Halyburton Iune 14. 1667. PAtrick Wat as Assigney by Adam Wat his Father to a Disposition granted by umquhil Halyburton to him pursues William Halyburton as Representing him to fulfil that part of the Disposition obliging him to procure the Pursuers Father Infeft and for that effect that the Defender should Infeft himself and grant Procuratory of Resignation for Infefting the pursuer It was alleadged for the Defender that he was not obliged to Infeft the Pursuer because it was his Fathers fault he was not Infeft seing he had received Procuratory of Resignation and Precept of Seasine with which he might have Infeft himself and though the Granter and he the Receiver lived for twelve or fifteen years thereafter he was negligent 2ly Though the Defender were obliged to Enter and Denude himself yet it must be the Pursuer finding Caution to warrand and relieve him of the hazard of the Ward and Marriage because the Lands in question being Ward through the Pursuers Authors fault the Defenders Marriage will fall 3ly The Defenders Fathers Name was only borrowed by Hallyburton of Egles-cairn who acquired the Rights blank and filled up the Defenders Fathers Name therein and moved him to Dispone The Lords Repelled these Defenses but Reserved to the Defender to pursue Damnage and interest for any hazard occurred by Adam Wats fault as being more proper against his Heir than against the Pursuer his second Son Mr. Heugh Gray contra Forbes Minister of Innerkeithing and Tennents of Nether-Horseburgh Iune 15. 1667. THe Tennents of Nether-horseburgh having Suspended these two Ministers upon double Poynding they alleadged they had made payment bona fide of their Rents conform to their Tacks It was answered that they were called to Mr. Heugh Grays Decreet in anno 1656. and Charged thereupon thereafter the same year which did put them in mala fide It was answered that there having nothing followed upon the Charge but the Charger being silent for fifteen years the Tennents favore rusticitatis cannot be thought to continue in mala fide all that time to infer double payment else it might continue for fourty years It was answered once in mala fide ay in mala fide and that thir Tennents did still remember and suspect the Pursuers Right appears because they took Discharges bearing warrandice of the same The Lords ordained the Defenders to produce their Discharges that the warrandice might appear being loth to decern the Tennents in double payment if the Charge could have access to the other Minister or his Representatives It was alleadged for the present Incumbent of Innerkeithing that in a former double Poynding raised by the Tennents he was preferred to the Cropt 1665. and in time coming It was answered that the said Decreet was in absence of Mr. Heugh Gray and that it was null without Probation for there was nothing produced for the Minister of Innerkeithing but his Presentation and Collation which were but meerly general and nothing produced to Instruct that their Teinds were of his Paroch or within his Benefice It was answered that he was secured by the Act of Parliament anent Decreets of double Poynding The Lords found that what the Minister of Innerkeithing had uplifted by vertue of that preference the Act of Parliament would secure him thereanent but found he had no Right as to the future Iohnstoun contra Cuninghame Iune 19. 1667. JAmes Iohnstoun as Assigney by William Iohnstoun to a Bond granted by Iames Cuninghame Charges him thereon he Suspends upon this Reason that the Bond bears the sum borrowed from William Iohnstoun and his Spouse and payable to them the longest liver of them two and their Heirs there being no Children betwixt them the one half must belong to the Heirs of the Wife to whom the Suspender is Curator and which he ought to retain for their use and albeit in such Clauses in Rights of Land or Heretage potior est conditio masculi yet it is not
Lords sustained the Process and found this Right to import a perpetual Disposition George Allan contra Fairie Eodem die GEorge Allan pursues Reduction of a Disposition granted by him to Fairie upon the Reason of Circumvention in so far as the Disposition though it was conceived absolute Yet it was expresly Communed that it should contain a Reversion and was Read as containing a Reversion at the Subscribing thereof which was offered to be proven by the Wryter and VVitnesses insert The Defender answered that the Reason was only probable Scripto vel juramento and so solemn a Writ could not be taken away by Witnesses The Pursuer answered that the Writer and Witnesses insert were most competent to prove a Point in facto viz. the fraudulent Reading of that which was not contained and there is here also produced an antecedent Adminicle in Writ to grant a Right Redeemable The Lords before answer ordained the Writer and Witnesses insert to be examined anent the Terms of the Treaty and whether the Disposition was Read at the Subscrybing as an absolute or redeemable Disposition William Litster contra Aitoun and Sleichâ— Eodem die WIlliam Litster having Arrested his Debitors Rent on the fifth of Aprile 1665 he thereupon obtained Decreet for making forthcoming in Iuly 1666. which being Suspended conpearance is made for Sleich who had Right to several Appryzings of the Lands which were deduced befoâ—e the Terms of payment of the Rent and craved preference to the Arresterâ— because his Arrestment was before the Term and the time of the Arrestment there was nothing due and also before the Term the Debitor was denuded by an Appryzing whereupon Infeftment followed in Decemb. thereafter and must be drawn back ad suam â—ausam to the Appryzing The Arrester answered that his Arrestment was valid being laid on câ—rrente termino for the next ensuing Term at least as hath been oft times decided by the Lords and is now their constant practice And as for the Appryzing before Infeftment albeit it will carry the Mails and Duties yet it is an incompleat Right and hath only the effect of a Judicial Assignation or Disposition so that the Competition being betwixt an Assigney viz. an Appryzer and the Arrester the Arrestment being prior is preferable to any Assignation Neither can the Infeftment on the Appryzing after the Term give any Right to the Rent prior to the Infeftment but the Right thereto is by the Appryzing which is but an naked Assignation The Lords preferred the Arrester Lord Blantyre contra Wakinshaw Eodem die THe Lord Blantire pursues a Reduction of a Bond as being granted in his Minority It was alleadged for Wakinshaw assigney to the Bond absolvitor because there was no Process intented against him intra annos utiles till the Pursuer was past twenty five years It was answered that the Defenders Cedent was Cited to whom the Bond was granted and this Defenders Right will fall in consequence and there was no necessity to Cite him in the same way that the Service of an heir may be reduced without Calling of his Creditors or these that are Infeft by him The Defender answered that his Assignation was Intimat before the Citation against his Cedent which cannot be miskenned by the Pursuer to whom the Intimation was made after which the Cedent had no Right and any Citation against him was of no moment neither is the Case alike to the Reduction of a Retour wherein the Reducer doth neither know nor is obliged to know the Creditors Rights The Lords found that the Assigney after the Intimation behoved to be Cited intra annos utiles but they sustained Improvation against the Citation made against the Assigney by way of Defense In this case it was not urged whether the Intimation was personal to the Pursuer or only at his dwelling House Or whether it was Recent before the Citation for if it were not Personal or Recent it were hard to oblige the Pursuer to remember so transcient an Act as an Intimation It was furder alleadged by the Defender that there was no Lesion because he offered him to prove that the sum was delivered to the Minors Curators at least to the Minor and his Curators joyntly who being persons abundantly solvendo and very provident the Minor could have no Lesion seing they were comptable It was answered non Relevat unless it were alleadged positive that the sum were utiliser impensum for the Minors profit for the Minor has his option either to pursue the Curators as intrometting or to Reduce hiâ— Obligation and the Curators not being in this Process no Probation of the delivery of Money to them will bind them but there were necessity that they were both Cited and it instructed by Writ The Lords Repelled this Defense but severals inclined not to sustain Processe till the Curaâ—ors were first Discust And whether the Minor was laesed or not Mr. Roger Hogg and other Creditors of Wauchtoun contra Countess of Hume Iuly 3. 1667. IN an Incident pursued by the Creditors of Wauchtoun against the Countess of Hume It was alleadged for the Countess that the Incident as to several of the Creditors could not be sustained and likewise could not be sustained against several of the Havers because as to these the Incident was without Warrand their Names not being contained in the Bill at the Signet It was answered the Bill contained several Names and a blank for others which is a sufficient Warrand for the Raisers of the Incident to insert whom they please It was answered that Incidents being odious strict form should be observed in relation to them so that a new Pursuer cannot be supplyed by the blank who did not supplicat by the Bill and alleadged a Decision the last Session where it was so found in an Incident at the Instance of the Feuers of Coldinghame against the Lord Justice Clerk The Lords sustained not the Incident as to any of the Pursuers thereof whose Names were not in the Bill but sustained the same against any of the Havers albeit their Names was not contained in the Bill it being ordinar to get Summons upon Bills upon such persons named and others wherein the persons Names insert are alwayes sustained but it is not so in the Pursuers and yet this would hardly been sustained in another Case then an Incident which is unfavourable Cumming of Alter contra Lumsden Iuly 4. 1667. CVmming of Alter having set a Salmond Fishing to Alexander Lumsden for payment of 60 pounds Scots of Tack-duty he pursues Matthew Lumsden as intrometter with the Fish taken for the Tack duty as having an Hypotheck upon the Profits for the Rent It was alleadged for the Defender Absolvitor because he intrometted with these Fish as Donatar to Alexander Lumsden's Escheat at least having now the Right of the Escheat he was not lyable for that priviledge preferring Masters of the Ground for the Rent cannot take place against the King and his Donatar who is more
he refused without an equal division and several of the Witnesses having Deponed that that difference was referred to the Owners without dissolving the consortship Mastertoun himself having also Deponed that in contemplation of the consortship Coningsbies Men waâ— put Aboard of him and the Prize and the Witnesses having variously Deponed anent the distance when the first Prize streiked Sail and was taken The Lords found a consortship sufficiently proven and that there was a concourse as to the first Prize and therefore found Coningsby to have a Right to a share which they found to be the equal share seing Mastertoun was most instrumental and did actually seize upon both Prizes The Minister of Cockburns-path contra his Parochiners Eodem die THe Minister of Cockburns-path having obtained a Designation of a Horse and two Kines Grasse conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby It was alleadged Absolvitor because the Designation was null in respect it was by the Bishops Warrand direct to three Ministers Nominatim and it was performed only by two the third not having come and a Commission to the three must be understood joyntly and not to empower any two of them unlesse it had been exprest likeas the Act of Parliament anent the Grasse requires the Designation of three Ministers The Pursuer answered that by the Act of Parliament 1661. the Designation of Grasse is appointed to be according to the old standing Acts anent Manses and Gleibs which do not require three Ministers that number being only required by the Act of Parliament 1649. which is Rescinded and not revived as to that point and seing three Ministers are not necesâ—ar but that two are sufficient the Designation done by two is sufficient The Lords Sustained the Designation unlesse the Defender shew weighty Reasons of prejudice upon the matter Sir John Weyms contra the Laird of Touchon February 8. 1668. SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance when he was General Commissar Charges the Laird of Touchon for his Lands who Suspended on this Reason that by that Act and Commission singular Successors are excepted The Pursuer answered that the Act excepteth singular Successors who Bought the Lands but the Suspender is appearand Heir and Bought in Appryzings for small Sums and as Wodsetters are not freed as singular Successors nor Appryzers within the legal so neither can the Suspender for albeit the legal as to the Appryzer be expired yet the Act of Parliament between Debtor and Creditor makes all Apprizings Bought in by appearand Heirs Redeemable from them on payment of the Sums they Bought them in for within ten years after they Bought them and therefore as to Touchon who is apperand Heir he is in the same case with an Appryzer within the legal Which the Lords found relevant and Decerned against Touchon Andrew Greirson contra Patrick Mcilroy Messenger February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger to use Inhibition and Arrestment against Sir Iames Mcdougal of Garthland and having failed to make use thereof in time before he Disponed did pursue him and Houstoun of Cutreoch his Cautioner before the Lord Lyon whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty and of the Damnage and Interest sustained by the Pursuer to the value of the Sums whereupon the Inhibition and Arrestment should have been used The Messenger and his Cautioner raises Suspension and Reduction and insists upon this Reason that the Decreet is null as a non suo judice because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office and upon default may Summond Messengers and their Cautioners and may Deprive the Messengers and Decern them and their Cautioners in the pains and penalty for which they became Cautioners yet the Lyon is not warranted thereby to Determine the Damnage of Parties through Default of Messengers which may be of the greatest Moment and Intricacy and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom The Charger answered that the Messenger was unquestionably lyable to the Lyons Juridiction and that both he and the Cautioner had made themselves lyable thereto by Enacting themselves in the Lyons Books â—nd granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty and have need of another Process for Damnage and Interest and that the Lyon has been accustomed to Decern Cautioners so before The Lords found the Reason of Reduction relevant and turned the Decreet into a Lybel but Sustained the Decreet as to the Penalty of 500. Merks in which the Messenger was Enacted but nâ—t for the Damnage and Interest neâ—â—her against the Messenger nor Cautioner William Borthwick contra Lord Borthwick February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money he Suspends and alleadges that William is Debtor to him in an equivalent Sum for the price of the Lands of Halâ—eriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâ—sse the Suspender would extend and perfect the Minut which my Lord refuses especially and particularly to Subscribe a Disposition of the Lands with common Pasturage in Borthwick Moor. The Suspender answered that he was most willing to extend the Minut but would not insert that Clause because the Minut could not carry nor import the same bearing only a Disposition of the Lands with Parts Pendicles and Pertinents thereof which he was content should be insert in the extended Disposition and it was only proper after the Infeftment was perfected that the Charger should make use of it so far as it could reach which he was content should be reserved as accords 2dly If he were obliged to Dispute the effect of it it could not extend to Pasturage in the Moor of Borthwickâ— first Because a special servitude of a Pasturage in such a Moor requires an express Infeftment and cannot be carried under the name of Pendicles Parts or Pertinents albeit the Moor were contiguous and the common Moor of a Barony but 2dly This Moor lyes discontiguous from the Lands of Halheriot and my Lords Lands lyes betwixt and does not belong to the whole Barony but to some of the Tennents of it only The Charger answered that this being a Minut behâ—ved to be extended in ample form expressing all Rights particularly that the Right de jure could carry and there was no Reason to make him accept of Lands with a Plea and de jure Pendicles and Pertinents do well extend to common Pasturage when the said Pasturage is so Possessed and it cannot be contraverted but the Heretors and Possessors of Halheriot have been in undoubted Possession of common Pasturage in this Moor and that the Rent payable therefore is
Kings Farmorers but that they had Common Pasturage in the Moor of Selkirk is not only presumed because it is the Common of the whole Barony and Possest by all the adjacent Feuars thereof but also by their continual Possession since for Possession 40. years is sufficient to prove all bygone Possession since the Right capable of that Possession it being impossible to adduce Witnesses to prove Possession eight score years since otherways and therefore as in the Case of the Lord Borthwick and William Borthwick Decided the 14th of this Instant The Lord Borthwicks Minut Disponing the Lands cum pertinentibus without any word of Pasturage was found to carry Common Pasturage in the Moor of Borthwick as being a Pertinent of the Lands Disponed the time of the Minut and not Reserved much more the King Disponing the Lands of Haining not only cum pertnenâ—tibus but cum pascuis et pasturis did carry to Haining the Right of Common Pasturage in the Common of Selkirk being then the Commonty of the Barony so that any Interruptions done since cannot take away the Right of Common Pasturage once constitute by the King and albeit the King had unquestionably granted the Right of Property to the Town thereafter yet that could not prejudge the Common Pasturage of another Constitute before For if Haining claimed this Common Pasturage only by Possession and Prescription Interruptions might be Sustained to exclude the famine but he claimes it chiefly by vertue of his Infeftment as having Right thereto the first day he was Infeft so that his Possession since albeit troubled by this Commonalty yet preserves his Right that the Town cannot alleadge a total and compleat Possession excluding him and thereby taking away his Right by Prescription in their Favour and as to the Towns Charter cum communiis it contains nothing per expressum of this Moor or Pasturage therein nor gives any thing de novo but bears cum communiis adâ—urgum spectantibus which the King might have given though there had not been a Commonty within 40. Miles in the same manner as the common Clauses in all Charters bearing Coal and Chalk Cuningars or Ducats whether there be any or not and the most the Town can pretend by their Charter is that they being a Burgh Erected within the Barony of Selkirk cum communiis may therefore claim Pasturage with the rest of the Feuars of the Barony but cannot exclude them as to the Liberty granted by the King to Ryve out a 1000. Aikers it clearly evinceth that they had not the Property before neither did that take any effect nor could it because the common Pasturage constitute to the Feuars before would have hindered any posterior power of Tillage As to the Decreet against the Tennents of Haining it is in absence the Heretor for the time not being callâ—d and albeit it bears Hainings Predecessor as Provost to be present that will neither import his Consent nor Knowledge Countrey Gentlemen being then ordinarly Provosts of Towns who lived not with them their Affairs at Law were Managed by their Town Clerk and Baillies though the Provosts Name behoved to be insert neither did this Decreet take effect for Hainings Tennents never ceased to pasture as to the Letters they do only acknowledge the towns Head Rooms because in great Commonties it is ordinar for several proprietars to have peculiar Places most convenient for them where they law their Cattel and casts Fail and Divot and which doth sufficiently consist with the Commonty as for the Acts of Court they can prove nothing against Haining The Lords found that the Town of Selkirk had undoubted Right of Pâ—sturage Fewel Fail and Divot in this Commonty and that they had immemorial Possession thereof without any interruption and found that Haining had no Right by vertue of Possession and Prescription but found that by vertue of his Charter anterior to the Towns Right he had Right to common Pasturage in this Moor it being the Common Moor of the Barony but seing he did not sufficiently prove Possession of Fail and Divot but was therein continually interrupted much more then in the Pasturage and that nothing appeared that in the time of his Original Right the Feuars had priviledge of Fail and Divot Therefore the Lords found that he had no Right thereto albeit common Pasturage doth ordinarly carry therewith Fail and Divot yet they found that it was a several Servitude separable therefrom either by Consent or Custom and found that the Town should enjoy their Head Rooms excluding Haining therefrom Iames Colquhoun contra Watson Eodem die JAmes Colquhoun Pipe-maker in Glasgow having gotten a tollerance from George Blair Heretor of Lunloch to dig Clay for Pipes there for certain years excluding all others there being an anterior Tack of the Lands the Tennents grants licence to one Watson for digging Clay there for Pipes the Heretor also concurrs with Watson Colquhoun pursues Watson for Intrusion and to desist from medling with any Clay there and for paying the value of what he had medled with Watson alleadged Absolvitor First Because the licence granted to the Pursuer being exclusive of all others was contra bonum publicum 2dly The licence was posterior to the Tennents Tack who thereby had Right to the whole profits of the Ground and accordingly gave tollerance to the Defender 3dly The Heretor having granted the Tack could not in prejudice thereof give power to the Pursuer to break the arable Ground and there being much more Clay nor the Pursuer could make use of ought to give power to the Defender to make use thereof for that effect The Pursuer answered that a total and negative licence was legal as well as any other total and sole Right and it was free to the Heretor to grant the same but could do no posterior Deed contrair thereto because he had bound up his own hands thereby â— and as to the Tack whether posterior or anterior to the licence it can only give Right to the Tennent uli fruiut colonus to Manure the Ground and reap the profits thereof but cannot give him Right to any Mineral under the superfice whether Coal Lime-stone Clay c. which is reserved to the Heretor and he may make use thereof which necessarly imports that he may break up the Ground to come at it or else the Right were not reserved to him and he is most willing to satisfie the Tennents damnage by opening the Ground neither needs any reservation thereof be exprest because it s implyed in the nature of the Tack which gives only power of the Superfice Tillage Pasturage and Profits thereof but the Tennent has no power to take away part of the Ground or to give licence to any other so to do The Lords Repelled the Defenses and found the Pursuer had the only Right by the Heretors exclusive licence and that the Tennent by his Tack had no Right to this Clay and that albeit his Tack was prior to the
Eodem die MAster Andrew Birny having granted a Bond to Alexander Short blank in the Creditors Name he for an equivalent Cause delivered the same to David Henderson who filled up his Name therein and Charges Mr. Andrew therefore he Suspends on a Reason of Compensation upon a Debt owing to him by Short to whom he delivered the blank Bond for whom he became Cautioner before he granted the Bond and payed the Debt partly before and partly after this Bond so that Henderson by filling up his Name being Assigney and Short Cedent payment or compensation against the Cedent before the Assignation is relevant against the Assigney It was answered that in this Case compensation is not relevant because the very Delivery of a Bond in a blank Creditors Name imports that the Receiver thereof may put in any Mans Name he will and he may never make use of Compensation against him whose Name is filled up otherwise why should the Creditors Name have been left blank which if it had been filled up it behoved to have had an Assignation which is but a Procuratory in rem suaem so that the Procurator can be in no better state nor the Constituent but the blank makes the Person filled up Creditor principally The Lords found Compensation not relevant against a Person whose Name was filled up in the blank being a singular Successor to him who first received the Bond. Mr. William Chalmers contra Wood of Balbegno Eodem die MAster William Chalmers Parson of Feltercarn pursues Reduction of a Tack of the Teinds of the Paroch granted by his Predecessors on this ground that it is null by Act of Parliament as wanting Consent of the Patron The Defender alleadged Absolvitor because the Pursuer had Homologat his Tack in so far as he had received payment of the Duty conform to the Tack which was a clear acknowledgement thereof It was answered that this could only be an Homologation for the years received and could not Homologat the Tack itself because the Tack was a standing Right valid till it were Reduced and the Pursuer could get no more then the Tack-Duty till he should Reduce the same The Lords found this no Homologation to validat the Tack Lord Justice Clerk contra Home of Linthel the Procurator-Fiscal and Officers February 28. 1668. THe Lord Iustice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony The Officers Poinded an Ox in October after the Plowing was begun The Lord Iustice Clerk pursues a Spuilzy as being Poinded in Labouring time and insisted against Linthel as Depute who gave the Decreet and Precept to Poind and as he who knew of the Poinding of the Ox by the Officer before he was Delivered and commanded to Deliver him and against the Officer who Poinded and the Procurator Fiscal who by the Executions of the Poinding produced Received the Ox from the Officer at the advising of the Cause Linthel having Deponed by his Oath that the Officer had told him an Ox was Poinded and he commanded the Officer to Deliver him and that he knew not he was a Labouring Ox so that that member not being proven the question was whether Linthel as Deput giving a Precept to the Officer to Poind in common form was lyable for the Spuilzy if the Officer did illegally Poind and so was answerable for the Fault of the Officer The Lords found him not lyable and therefore Assoilzied Linthel and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal especially seing the Defenders defended themselves with the Poinding and themselves produced the Execution and for the violent profits the Lords Decerned 5. Shilling for every day from October to May inclusive being Labouring time and that yearly since the Spuilzy till the Sentence Duke Hamiltoun contra Maxwel of Moreith February 29. 1668. THe Duke of Hamiltoun as Collector-General of the Taxations having Charged Maxwel of Moreith he Suspends upon this Reason and alleadges that he had Imparked and Inclosed a ten Merk Land since the Act of Parliament 1661. anent the Inclosing of Grounds by which all Lands to be Inclosed thereafter are to be free of all publick Burdens It was answered that the Act of Convention was posterior and had no such exception but on the contrair took away all former exceptions It was answered that an Act of Parliament cannot be Derogat or Abrogat by an Act of Convention The Lords found the Reason relevant notwithstanding of the Act of Convention Ioanna Mâ—alexander contra Charles Dalrymple Iune 9. 1668. IOanna Mâ—alexander a Sister Daughter and one of the nearest of kin of Umquhile Elizabeth Dalrymple pursues a Reduction of the said Elizabeth her Testament whereby she nominat Charles Dalrymple her Brothers Son her Executor and universal Legator upon this Reason that in the time of the making that Testament she was not compos mentis but fatuous and insensible The Lords having appointed the Witnesses of the Testament and other Witnesses to be Examined thereanent the Witnesses in the Testament and Writer thereof being Examined Deponed that she was in her right Miâ—â— and gave order for drawing of the Testament and gave order to Subscribe it the other Witnesses Deponed that about that time for several weeks before and some time after the Defunct was fatuous and not in a right Mind and to every question proposed to her she answered alwise yea yea and some words of Ravery which she frequently spoke The Lords having also caused Re-examine the Testamentar Witnesses that it might appear whether she did only answer to Interrogators as when it was answered whether she would have Charles Dalrymple her Executor and universal Legator and whether she said yeaâ— yea and whether she gave Direction without a forgoing question by words that might signify her Sensibility And having considered the whole Testimonies they found that Probation most pregnant that she was Fatuous and insensible at the time of the making the Testament and therefore Reduced albeit the Witnesses were Extraneous that proved and were not present at making the Testament at which time a lucide interval of a Person Distempered by Disease not constantly Fatuous might have been sufficient This was stoped till it were further heard Sir Iohn Gibson contra Iames Oswald Iune 13. 1668. SIr Iohn Gibson and Iames Oswald having mutual Declarators of Property of a peice of contraverted Ground lying on the Mâ—rch between two Gairs or Bentish Strypes of Ground through a Moor equal number of Witnesses being Examined for either Party one Witnesse for either side proved 40. years constant Possession of the Party Adducer and that they did interrupt the other Party and turned away their Cattel when they came over some of the witnesses did prove either Party to have had Possession above 40. years since but did not prove that they knew the same constantly so Bruiked neither did they know any thing to the contrary and
Suspenders Oâ—th or VVrit The Lords fâ—und that the granting of the Bond was no Hâ—mologation of the Decreet but that â—e might quarrel the same and that the giving of the Bond was no Transaction if he payed or gave Bond for the whole Sums contained in the Decreet but found that â—f in consideration of the Grounds upon which he might quarrel the same he had gâ—â—â—en an abatement by Arbitration or otherwise that he could not quarrel the same and found it only probable by his Oath or â—â—rit Iames Donaldson contra Harrower Eodem die JAmes Donaldson pursues Iohn Harrower as representing his Father for whom the Pursuer became Cautioner to the Lord Rollo for 100. pound for relief of the Defuncts Goods that were then a poinding for which the Defunct promised payment and did pay the Lord Rollo and produces a Testificat of the Lord Rollo's thereof and craves payment and offers to prove the Libel by VVitnesses the Libel not being above an hundred pound It was alleadged for the Defender that this being a Cautionry and a Promise it was not probable by VVitnesses especially after so long a time the Promiser being dead who might either qualifie the Promise or instruct payment there being nothing more ordinar then to Transact such Affairs without any VVrit The Lords found the Libel not probable by Witnesses Frazer contra Frazer Eodem die JOhn Frazer having obtained a Decreet against William Frazer his Brother to deliver a Tack of the Lands of Boghead granted to their Father and his Heirs to whom the said Iohn is Heir William Suspends on this Reason that he is Heir to his Father of the second Marriage and produces his Retour and produces the Contract of Marriage including a Clause that all Tacks Conquest during the Marriage should belong to the Heirs of the Marriage and this Tack being Acquired during the Marriage the same belongs to him and albeit it he conceived to the Heirs generally yet by the Contract the Pursuer as Heir general will be oblieged to Assign It was answered that this Tack was no new Conquest but had been the old Possession of the Father and the Tack bare the Lands to be presently possest by him The Lords found this Tack to fall under the Clause of Conquest unless the Pursuer prove that there was an old Tack standing which expyred not till the second Marriage was Dissolved in lieu whereof this new Tack was taken Hamiltoun contra Callender Iuly 7. 1668. JAmes Hamiltoun having taken his Debitor with Caption offered him to Iames Callender Baillie of Falkirk to be Incarcerat in the Tolbooth of Falkirk and he refusing he now pursues a subsidiary Action against the Baillie for payment of the Debt who alleadged Absolvitor because he is no Magistrate of a Burgh Royal but of a Burgh of Regality the Baillies whereof were never in custom to be Charged with Rebels The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expresly Baillies of Stewartries and Regalities according to which the Tenor of all Captions bears the Letters to be direct against all Baillies of Regalities The Defender answered that for the Letters it is but stylus curiae and for the Act of Parliament the Narrative and Reason thereof relates only to Burghs having Provest Baillies and Common Good The Lords having considered the Act of Parliament Repelled the Defense and Decerned here the Rebel was Residenter within the Burgh of Regality where there was known to be a convenient Prison Relict of William Pattoun contra Relict of Archibald Pattoun Eodem die THE Relict and Executors of William Pattoun pursues the Relict and Executors of Archibald Pattoun for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald and craves the Defender to produce Archiâ—alds Compt Books who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam â—item so that the desire was no wayes reasonable unless the Pursuer had given in a particular Charge and Litiscontestation had been made thereon in which case the Defender might have been compelled ad modum probationis to have produced the Books It was answered the contrair was found in the Compt and Reckoning betwixt the Children of George Suiâ—ty against the Representatives of William Suitty their Tutor and that there was as great reason here the two Defuncts having been Brothers and being in Copartnery together and the one Factor for the other It was answered that the case of a Tutor and his Pupil was no way alike because the Tutors Compt Book was in effect the Pupils and the Copartinery and Factory was denyed The Lords ordained the Book to be put in the hands of the Auditor and if he found by inspection thereof any Accompts appeared as betwixt Partners and Factors he should produce the same to the other Party even ad fundandam litem otherwise that the same should be given back and not showen to the Pursuer Margaret Alexander contra Laird of Clackmannan Iuly 9. 1668. MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie by a posterior Infeftment in Corroboration of the former Right she was Infeft in that same Annualrent out of other Lands whereof she was in Possession but this posterior Infeftment being Reduced upon an Inhibition prior thereto she pursues poinding of the Ground of the Lands of Sauchie upon the first Infeftment It was alleadged for Clackmannan Absolvitor because the Pursuers Right of Annualrent is base never cled with Possession and now he is Infeft in the Lands either publickly or by another Infeftment cled with Possession The Pursuer answered that the Infeftment in the Lands of Sauchie was sufficiently cled with Possession in so far as the posterior Infeftment of Annualrent in Corroboration thereof was cled with Possession and as payment made by the Heretor by himself for his Tennents or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession so payment made by his Tennents by the posterior Infeftment in Corroboration can be no worse then an Assignation to the Mails and Duties of these Lands which as it payes some Terms Annualrent of the first Infeftment so it must cloath it sufficiently with Possession It was answered that here being two distinct Infeftments at several times albeit for the Annualrent of the same sum yet the Possession of the last cannot relate to the first The Lord Repelled the Defense in respect of the Reply and found that Possession by the last Infeftment did from that time sufficiently validat the first Heugh Boog contra Robert Davidson Eodem die HEugh Boog having arrested Robert Davidsons Fee as Keeper of Herlots Hospital Pursues the Town of Edinburgh to make it forthcoming It was alleadged for Robert Davidson Absolvitor because Robert Davidson had made cessionem bonorum in favours of this Pursuer and his other Creditors and thereupon was Assoilzied The Pursuer answered that a Honorum did no
that the principal Inventar was produced by Hartrie on his Death-bed and shown to his Friends and by them Read and that the Subscribed Copy was Collationed with the principal by them that Subscribed the same and held in all points and that the principal Inventar was all written with Hartries own Hand except an alteration made upon a Bond of Tarbets which was written by Iohn Ramsay's Hand by direction of Hartrie some hours before he Died and was not able to Subscribe it with some other alterations in relation to Bonds wherein the Children Substitute were Dead but that this Article in relation to Whiteheads Bond was all written with Hartries own Hand The Lords found the Tenor proven conform to the Subscribed Copy and found the said Inventar Holograph except in relation to Tarbets Bond and these other particulars written by Iohn Ramsay's Hand so that Holograph was proven without production of the principal Writ joyntly with the Tenor albeit some part of the Writ was not Hartries Hand but written by Iohn Ramsay's Hand but these not being Subscribed by Hartrie were in the same case as if they had been omitted forth of the Inventar and the remainder of the Inventar which only was Probative was all Holograph Patrick Park contra Nicol Sommervel November 12 1668. PAtrick Park pursues a Reduction of a Bond of 1200. Merks Scots upon these Reasons First Because albeit the Bond bears borrowed Money and be in the Name of Nicol Sommervel yet he offers to prove by Nicols Oath that when he received the Bond it was blank in the Creditors Name and offers to prove by Witnesses that the true Cause thereof was that Sommervel Nicols Brother having win all the Pursuers Money he had at the Cards he being then distempered with Drink caused him Subscribe a blank Bond for filling up what Sum he should win from him and that this Sum was filled up in this Bond which he offers to prove by the Oath of Nicols Brother that wan the Money and the other Witnesses insert so that the Clause of the Bond being played Money by the Act of Parliament 1621. the Winner can have no more but 100. Merks thereof 2dly Before Nicols Name was filled up or any Diligence or Intimation thereof there was a Decreet Arbitral betwixt the Winner and the Pursuer wherein all Sums were Dischargedâ— which Discharge being by the Câ—dent to whom the Bond was Delivered before the filling up of Nicols Name or Intimation thereof which is in effect an Assignation excludes the Assigney It was answered for the Defender that he opponed the Bond bearing borrowed Money grantled in his own Name and though he should acknowledge that the Bond was blank in the Name and that thereby his Name being filed up he is in effect and Assigney yet the Bond being his Writ the Bond cannot be taken away but by Writ or Oath of Party and not by his Cedents Oath or Witnesses insert unless it were to the Cedents behove or without a Cause Onerous as the Lords have found by their Interlocutor already 3dly Albeit it were acknowledged to be played Money the Act of Parliament is in Desuetude and it is now frequent by Persons of all quality to play and to pay a greater Sum then 100. Merks 4thly The Pursuer who loseth the Money hath no Interest by the Act of Parliament because thereby he is appointed to pay the Money but the superplus Money more then 100. Merks is appointed to belong to the poor and the Defender shall answer the poor whenever they shall pursue but it is jus tertij to the loser who cannot detain the Money thereupon but whatever was the cause the Defender having received the Bond for a Cause Onerous and being ignorant that it was for any other Cause but true borrowed Money he must be in tâ—to otherwise upon this pretence any Bond may be suspected and the Cedent after he is Denuded by Witnesses may take the same away The Lord Advocat did also appear for the Poor and claimed the superplus of the Money more then 100. Merks and alleadged that the Act of Parliament did induce a vitium reale which follows the Sum to all singular Successors and that though ordinarly the Cedents Oath or Witnesses be not taken against Writ yet where there is Fraud Force or Fault Witnesses are alwayes Receiveable ex officio at least and ought to be in this Case where there is such Evidence of Fraud that it is acknowledged the Bond was blank in the Creditors Name when Nicol Received it and the filling up was betwixt two Brethren and the Debitor dwelling in Town did not ask him what was the Cause of the Bond and that an Act of Parliament cannot fall in desuetude by a contrait voluntar Custom never allowed by the Lords but being vitious against so good and so publick a Law The Lords found the Act of Parliament to stand in vigour and that the Loser was lyable upon the same grounds and therefore ordained the Sum to be Consigned in the Clerks Hands and before answer to whom the Sum should be given up ordained Nicols Oath to be taken when his Name was filled up and for what Cause Margaret Calderwood contra Ianet Schaw November 14. 1668. MArgaret Calderwood pursues Ianet Schaw to pay a Bond as Heir to Iohn Schaw granted by him who alleadged Absolvitor because the Bond is null wanting Witnesses the Pursuer offered him to prove Holograph The Defender answered that Holograph could not prove its own Date so that it is presumed the Bond was granted on Death-bed unlesse 〈◊〉 be proven that the Date is true as it stands or at least that it was Subscribed before the Defuncts Sickness The Pursuer answered that Holograph proves its Date except contra tertium but it is good against the granter or his Heir who cannot be heard to say that his Predecessorsâ— Deed is false in the Date The Defender answered that an Heir might very well deny the Date of a Holograph Writ otherwise the whole benefit of the Law in favours of Heirs not to be prejudged by Deeds on Death-bed may be evacuat by Antedated Holograph Writson Death-bed The Pursuer answered that he was willing to sustain the Reason founded on Death-bed which was only competent by Reduction and not by exception or reply The Defender answered that where Death-bâ—d is instantly verified by presumption of Law and that the Pursuer must make up a Write in rigore juris null for want of Witnesses he ought without multiplication of Processes both to prove the Bond Holograph and of a Date anterior to the Defuncts Sickness Which the Lords found Relevant William Duncan contra the Town of Arbroth November 17. 1668. WIlliam Duncan Skipper in Dundee having lent the Town of Arbroth three Cannon in Iune 1651. to be made use of for the Defence of their Town against the English got from the Magistrats of Arbroth a Bond of this Tenor that they did acknowledge them to have Received
Lands for far less then the true price The Lords found the Act not to extend to Appryzers unless the sums were a competent price for the Land Appryzed and therefore found the Letters orderly proceeded Isobel and Margaret Simes contra Marrion Brown Ianuary 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown Iohn Flowan Marions Master is obliged to pay 300. Merks of Tocher and Thomas Sim is obliged to imploy the said 300. Merks and 200. Merks further for the said Marion her Liferent use the said Thomas having two Daughters Isobel and Margaret Sims he lends a sum of 400. Merks to Thomas Brown and takes the Bond on these Terms to be payed to him and the said Marion Brown the longest liver of them two in Liferent and after their Decease to Margaret and Isobel Sims The said Isobel and Margaret having pursued the said Marion before the Commissars for Delivery of this Bond as belonging to them after their Fathers Death The Commissars Assoilzied the said Marion from Delivery of the Bond and found it did belong to the said Marion her self not only as to the Annualrent but as to the Stock because her Husband having no other Means but this Bond and not having fulfilled her Contract she had Confirmed her self Executrix Creditrix in this sum and behoved to Exclude her Husbands two Daughters of a former Marriage who were provided and Forisfamiliat before Of this absolvitor the Daughters raised Reduction on this Reason that this Sum could not be Confirmed not being in bonis defuncti the Father being but Liferenter and the Daughters Feears and though they were but as heirs substitute they exclude Executors and need no Confirmation 2dly The Husband being but obliged to Employ this Tocher and 200. merks more the Pursuer must instruct that the Tocher was payed 3dly The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision It was answered that the Wife not being obliged for her Tocher but another Party who was solvendo and neither being obliged nor in capacity to pursue therefore could not now after so long a time be put to prove that the Tocher was payed and for her Intromission she had Confirmed and made Faith and the Pursuers might take a dative ad omissa if they pleased but could not hoc ordine Reduce or stop her Decreet upon compearance The Lords found that albeit in Form the Bond should have been Reduced as being done in fraudem of the Wife as being a Creditor and thereafter Confirmed yet now the matter being before the Lords and the Parties poor they found the Husbands Substitution of two provided Daughters by a former Marriage null as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction the matter being but a personal Right and found the Wife not obliged to instruct the Tocher payed and therefore assoilzied from the Reduction but prejudice to the Pursuers to Confirm a dative ad omissa William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief Eodem die IN a Compt and Reckoning betwixt these Parties anent the satisfaction of an Appryzing the Auditor in respect that Mr. Patrick Oliphant and Dam Giels Moncrief were Contumacious and compeared not did Decern conform to William Zeomans Summonds finding the Sum satisfied and ordained them to Remove whereupon William Zeoman obtained Possession and having been several years in Possession Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy and a Writer to the Signet past Letters of Possession in his favours against William Zeoman but without a Warrant from the Lords which were found null and this Writer Deposed but Mr. Patrick having attained Possession by these Letters William Zeoman insists against him as an Intruder to quite the Possession It was alleadged for Mr. Patrick that William having obtained Possession unwarrantably by Decreet upon his pretended Contumacy and he being now restored there against he is in statu quo prius before that Decreet at which time he was in lawful peaceable Possession which only should stand and neither of the unwarrantable Possessions be regarded It was answered that William Zeomans Possession was by vertue of a Decreet then standing autore pretore and so was not vitious but Mr Patricks was without Warrant of the Lords and so was most vitious It was answered that Mr. Patrick was instantly content to Debate his Right frustra petitur quod mox est restituendum It was answered that spoliatus ante omnia est restitâ—endus and is not obliged to Dispute any Right till first he be Restored Which the Lords Sustained and ordained William Zeoman instantly to be Restored to the Possession My Lord Balmerino Supplicant Ianuary 7. 1669. MY Lord gave in a Bill to the Lords Representing that his Uncle was Dead and that he is nearest Heir-male to him in whose favours his Estate is provided and therefore desired that Commission might be granted to certain Persons in the Countrey to Inventar Seal and Secure his Charter Chist and to make patent Doors in his Houses Coffers and Cabins for that effect and to take my Lady his Relicts Oath where the Evidents were to the effect foresaid Compearance being made for my Lady desiring a sight of the Bill till the next day and alleadging that it was notour to the Lords that my Lady had a Disposition to the whole Estate whereupon Resignation had past in Exchequer and that the Evidents ought to be left open to the effect my Lady may instruct her Charter conform to the Disposition The Lords refused to give up the Bill it being their ordinar Course to grant such Commissions without calling or hearing Parties and that a short delay might prevent the effect of the Commission and therefore granted Commission to certain Noblemen and Gentlemen or any one of them to Inventar Seal and Secure the Evidents and to open Doors Coffers and Cabinets for that effect but refused to give Warrant to take my Ladies Oath Captain Newman contra Tennents of Whitehil and Mr. Iohn Prestoun Ianuary 8. 1669. CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor and being thereupon Infeft pursues the Tennents for Mails and Duties Compearance is made for Mr. Iohn Prestoun who produces a Disposition from Craigmiller his Brother of the Baronies of Craigmiller Prestoun and Whitehil Which Disposition relates this Debt of Captain Newmans and many other Debts and for satisfaction thereof Dispones these Lands to Mr. Iohn Reserving the Disponers and his Ladies Liferent containing a Reversion upon ten merks and containing a provision that it should be leisom to Craigmiller during his Life and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased without contributing the price proportionally to the rest of the Creditors and also produces a Renunciation by Craigmiller whereby he Renunces the
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown of
Bargain or to necessitat her to quite the same and give only a Wodset seing the Clause gives her power both to Sell and Affect and does not limit her to either of them The Lords Repelled the Defenses aâ—d declared that the Lady had warrantably Sold these Lands and that the principal Sums being so considerable although the Rental had been more they were sufficient and found that the Clause laid no necessity upon her to exhaust the Moveables and that she might thereby Wodset or Sell at her pleasure Iames Deanes contra Alexander Bothwel February 5. 1669. ALexander Bothwel of Glencorsse being conveened before the Commissars of Edinburgh for Slandering Iames Deanes Procurator before the Commissars in calling him a false knave publickly in the Parliament House and at the Crosse the samine being proven by Witnesses he was Decerned to stand at the Kirk Door of Glencorsse where both Parties dwelt and acknowledge his Fault and to pay 100. pound to the Poor and 100. pound to the Party Bothwel Suspends on these Reasons first That the Commissars could not ordain him to stand at an Congregation which is an Ecclesiastical Censure 2dly That they could not also Fyne him to the Poor nor Decern any thing to the Party but the Expences of Plae seing there was no other Damnage Lybelled nor proven 3dly That the Witnesses were not habile being the Pursuers own Servants The Charger opponed the Decreet wherein the Suspender was compearing and objected nothing against the hability of the Witnesses then and therefore cannot now quarrel their Testimonies and that it was most proper for the Commissars to cognosce upon Slander or Defamation neither was his standing in order to Repentance but in order to restoring the party to his Fame The Lords Repelled the Reasons and Sustained the Decreet in all Points Cleiland contra Stevinson Eodem die William Cleiland Charges Iohn Stevinson upon a Bond of 400. Merks bearing Annualrent he Suspends on this Reason that the Charger was owing him more for Victual being his Tennent which was now liquidat before this time but after the Date of this Bond and craved compensation thereupon not only from the Date of the liquidation but from the time the Victualrent was due Which the Lords Sustained Rule contra Rule February 6. 1669. MArgaret Rule having made a Consignation of certain Bonds and in general of all other Rights with a Disposition of all her Goods to Umquhile Robert Rule her Brother who having named Mr. David Rule his Executor and universal Legator did upon his Death-bed acknowledge that his Sisters Disposition was in trust to her own behove granted upon that consideration that she being a Bastard unless she Disponed in her leige poustie her Means would be Confiscat by her Bastardy she thereupon pursues the said Mr. David Rule to deliver back her Assignation with her own Writs The Defender alleadged the Lybel was no way Relevant there being nothing Libelled but the Defuncts acknowledgement of a Trust upon Death-bed and that offered to be proven by Witnesses only but First The Trust behoved to be declared by a Declarator and not thus by an Exhibition 2dly Trust is only probabable scripto vel juramento being a matter of so great importance 3dly Some of the Rights Assigned and Disponed are Heretable and nothing done upon Death-bed can prejudge the Defuncts Heir thereof 4thly An extrajudicial Confession without Writ albeit it were acknowledged hath no effect for it cannot be known quo animo such words might have been exprest The Pursuer answered that the Trust might be very well Lybelled with the Exhibition and albeit the Defuncts Confession would not alone be sufficient to prejudge his Heir yet it may very well stand as an evidence of Trust which cannot be astricted to probation by Witnesses but hath ever been found probable by other evidences especially where the Person trusted is Dead and the Pursuer condescends upon these evidences and adminicles of Trust. First Communis fama 2dly The Assignation and Disposition bears no Reservation of the Disponers Liferent and yet she continued still in Possession and her Brother whom she Entrusted never medled which he would not have done if the Disposition had been for a Cause Onerous or to his own behove 3dly He did solemnly in presence of Witnesses above exception acknowledge the Trust on his Death-bed The Lords Sustained the Summons and would not astrict the Pursuer to prove by Write or Oath of Party but ordained Witnesses to be Examined ex officio anent the evidences and adminicles condescended on by the Pursuer Black contra Dawid French February 9. 1669. THe Lands of Miln-burn being holden Waird of the Dutchess of Hamiltoun after Miln burns Death the Duke and Dutchess grants a Gift of the Waird to Mr. â—oâ—ert Black who pursued for Mails and Duties and likewise David French having Appryzed from Miln burn and having Charged the Dutchess before Miln-burns Death to Receive him he pursues the Tennents for Mails and Duties who Suspend upon double Poynding In the Competition it was alleadged for the Appryzer First That his Appryzing being a Judicial Sentence did Denude Miln-burn the Vassal in the same way as if Miln-burn had Resigned in the Dukes Hands in favours of David French after which Miln burn was totally Divested and no Casualty could befall to the Superior by his Death Ita est that Law hath stated a Decreet of Appryzing in the same Case as an Resignation accepted for though the Vassal against whom the Appryzing was led should Die the Appryzer will summarly upon a Charge obtain himself Infeft so that the former Vassal was totally Denuded 2dly Here not only there is Appryzing but a Charge against the Superior which fictione juris is in all points as if the Appryzer were actually Infeft and therefore the Appryzer who first Charges albeit he inâ—iâ—t not to use any further Diligence is ever preferred to all other Appryzers Infeft after It was answered for Black the Donator that he ought to be preferred because the Superior who gave his Giâ—t could not want a Vassal nor loss the Casualty of his Superiority without his own fault but the Appryzer did not become Vassal neither by the Appryzing nor by the Charge nor was it ever found that the Liferent or Waird of an Appryzer fell unless he had been actually Infeft and it would be of very great disadvantage to Creditors if the naked Charge should make their VVaird to fall which they may pass from at their pleasure therefore seing the Appryzer could not be Vassal the former Vassal behoved to remain Vassal and seing the Superior could not have a Waird by the Appryzers Death he behoved to have it by the former Vassels Death and albeit the Charge be â—qulparat to an Infeftment as to the Competition of Appryzers whom the Superior may not prefer but according to their Diligences yet it is not holden as an Infeftment to any other Case for thereupon the Appryzer cannot remove the
young Garner was then an Infant in his Fathers Family and albeit the Right be granted by his Uncle yet it is necessarly inferred to be Acquired by the Fathers Means because it bears not for Love and Favour but for Sums of Money and the Uncle had Bairns of his own It was answered that albeit the Right had been Acquired by the Fathers Means yet its anterior to the Apprizing and Sums on which it proceeds whereupon nothing can be taken away but what is posterior thereto albeit there were a Declarator and Reduction intented for that purpose as there is none The Lords Sustained the alleadgeance and Reduced the Apprizing as to these Tenements 2dly The Pursuer alleadges the Apprizing as to Lady-kirk must be Reduced because the Pursuers produce a prior Infeftment granted by Iohn Garner to his Wife in Liferent and his Bairns in Fee it was answered that the said Infeftment was base never cled with Possession The Pursuers Replyed that the Fathers Liferent not being Reserved the continuation of Possession was as lawful Administrator to the Pursuers Bairns and if need be 's its offered to be proven he had a Factory from them The Defender answered that a Fathers Possession being continued was never found to validate a base Infeftment granted to his Children albeit his Liferent were expresly Reserved but it s ever accounted a latent fraudulent Deed and a Factory can be of no more force then a Reservation otherwise it were impossible to obviat fraudulent conveyances betwixt Fathers and Children The Pursuer answered that albeit such Reservations are not valide in Rights freely granted by Fathers yet it meets not this case especially where there was an anterior Onerous Cause Iohn Garner being obliged by his Contract of Marriage that what Lands he should Acquire should be to his Wife in Liferent and to the Bairns of the Marriage The Lords found that the Bairns Infeftment granted by their Father albeit he had Possest by a Factory from them was not cled with Possession or sufficient to exclude a posterior publick Infeftment and that the Clause in the Contract was but to substitute the Children Heirs to their Father in the Conquest Here it was not alleadged that the Factory was made publick by Process founded at the Fathers Instance or otherwise in this Process The Defender to satisfie the Production of an Assignation upon which the Apprizing proceeded which the Pursuers offered to improve as false in the Date and the Defender now produced another Assignation of the same Date and declared he abade by the same as of that Date and that it being a missing he had caused the Cedent to Subscribe another of the same Date with the first which did expresly bear Reservation of another Assignation formerly Subscribed which he did also bide be as truly Subscribed but not of the Date it bears but of the Date of the true Assignation insert therein The Lords Sustained the Assignation now last produced and did not quarrel the other Assignation though another Date was insert then when it was Subscribed for the Cause foresaid Alexander Glasse contra Iohn Haddin Eodem die ALexander Glasse and William Reid having a proper Wodset of the Lands of Alairtnenie and Iohn Haddin being also Infeft in an Annualrent forth thereof some days prior compet for the Maills and Duties Haddin alleadged that both infeftments being base from the same Author his Infeftment of Annualrent is preferable because prior and first cled with Possession It was answered any Possession he had was by a Factory from Glass It was replyed that he offered to prove Possession before that Factory It was duplyed that by Haddins back Bond produced bearing expresly that Glasse had had a valide Right to the Maills and Duties of the Lands and that he was in Possession thereof and that Haddin had accepted a Factory from him and was obliged to compt to him for the Maills and Duties without any Reservation of his own Right this was an unquestionable Homologation and acknowledgement of the Right and equivalent to a Ratification thereof The Lords found by the back Bond produced of the Tenor foresaid that Haddin had so far acknowledged Reid and Glasses Right that he could not quarrel it upon his own Right but he proponing that there was a Reservation of his own Right related to in the back Bond the Lords found the same Relevant he proving Possession before the other Party and before the Factory The Old Colledge of Aberdeen contra the Town of Aberdeen Iuly 13. 1669. THe Principal and the remanent Members of the old Colledge of Aberdeen having Set a Tack to Doctor Dun of his Teinds during the Principals Life and five years thereafter and bearing an Obligement to renew the like Tack from time to time for ever The Doctor Mortified the same to the Town for plous uses after the Death of that Principal many years The Colledge now pursues the Possessors of the Lands upon an Inhibition for the full value of the Teinds and the Town Defends upon the foresaid Tack It was answered for the Colledge that the Tack is only for the Principals Life and five years after which is expired and as for the new Obligement to renew such Tacks for ever It was answered First Albeita Tack were conceived in these Terms it would be null as wanting an ish 2dly Obligements of the present Incumbents in Universities are not obligator but where there is an equivalent Cause Onerous Received for the good of the University It was replyed for the Town that an Obligement to grant a Tack by them who can grant it is equiparat to the Tack it self which requires no other solemnity as an obligement to grant an Assignation is equivalent to an Assignation and that there is here a Cause Onerous of the Universities Obligement because the Tack bears expresly 300. Merks of grassum and that the former Tack-duty was only ten Merks which by this Tack is made 50. Merks and albeit it want a desinit ish yet it must be valide for a Renovation during this Principals Life and five years after and it is Homologat by the Colledge who have received the same Duties several years since the first Tack expired It was duplyed for the Colledge that this Tack is not valide for any time after the first ish because by the Act of Parliament 1617. Tacks by beneficed Persons under Prelats are prohibit for longer time nor their own Life and five years after and these Teinds are a part of the benefice Mortified to the Colledge and they must be accounted as beneficed Persons and albeit the Teinds were augmented to 50. Merks yet they are worth 200. Merks and for the Receipt of the Duties after the first Tack it is per tacitamrelocatiâ—nem and no Homologation of the Obligement to renew the Tack The Lords found that the Colledge was not comprehended under beneficed Persons but found that there was no sufficient Cause Onerous alleadged for this Obligement of Renewing
of the Shire but at the Mercat Cross of the Regality in the English time when Regalities were supprest 2dly That the Appryzing was led at Glasgow and neither within the Shire of Air where the Lands ly nor by Dispensation at Edinburgh And albeit the Letters bear a Dispensation to Appryzâ— at Glasgow and that the Denunciation was made accordingly for the Parties to appear at Glasgow yet there was neither Law nor Custom for such a Dispensation and Parties are not obliged to attend but at the head Burgh of the Shire or in communia patria at Edinburgh 3dly The Pursuer has also an Appryzing though posterior yet preferable because solemn and orderly according to the Custom then being It was answered that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities which were then supprest where they were used at the head Burgh of the Shire according to the Custom then and so validats such Appryzings yet this Defender having according to the standing Law of the Land Denunced at the head Burgh of the Regality the contrair unwarrantable Custom cannot annul his Appryzing proceeding according to Law And as to the Dispensation at Glasgow which was nearer the Lands then Edinburgh whatsoever might have been said to the inconveniency of granting such a Dispensation yet being granted it is valide and was then frequent to grant such Dispensations The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time at the head Burgh of the Shire upon Denunciation that it was more solemn and preferable as to the manner of Denunciation than that which was upon Denunciation at the head Burgh of the Regality at that time But the Lords did not determine whether such an Appryzing would have been valide if there had not been a more formall one Nor whether the Dispensation being granted at Glasgow was valide Margaret Scrimzeor contra Alexander Wedderburn of Kingennie Iuly 19. 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie and two others to be Tutors to his Daughter She now pursues a Tutor Accompt wherein this Question arose and was reported to the Lords by the Auditors viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished and became Insolvent and craved to be liberate thereof on that Ground in his Discharge It was alleadged for the Pupil that the Tutor must be lyable from the time that he knew that he was Nominat Tutor for albeit he might have abstained absolutely yet once accepting the Tutory by Nomination of a Testament wherein a Legacy was left to himself he must compt as if he had accepted it at the first for which there was adduced many Citations of Law It was answered for the Tutor that in the Roman Law Tutors were obliged to accept so soon as they knew their Nomination unless they could free themselves by the excuses allowed in that Law But with us it is absolutely free to accept or refuse without any excuse and it is only the acceptance that obliges and so can have no effect ad preterita as to that which perished before acceptance especially in this case the Defender being but one of three Tutors Nominate he ought to have had a time to endeavour with the rest to accept and his lying out was in such a time in which Judicatures did cease by War and Troubles the English after the Battel of Dumbar in September 1650. being possest of Edinburgh and the publick Records there was no Session keeped till the year 1652 or 1653. The Lords found the Tutor was not lyable for any thing that perished before his acceptance The Executors of Walter Hamiltoun contra The Executors of Andrew Reid Iuly 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid for payment of a Bond of 122. pounds Sterling and of a Bond of eighteen pounds Sterling due by the said umquhil Andrew Reid to the said umquhil Walter Hamiltoun The Defenders alleadged that they ought to have allowance of fifty pounds Sterling payed to Walter by Iohn Fleeming by Andrew Reids Order and of Sterling payed to Mckneich upon a Bill drawn by Walter Hamiltoun upon Andrew Reid to be payed to Mckneich and for proving thereof produced missive Letters Written by Walter Hamiltoun to Andrew Reid the one bearing that Fleeming had payed a part of the 50. pound and he doubted not but that he would pay the rest And the other bearing that Mckneich had got payment It was answered for the Pursuers that the Missive Letters could not instruct a Discharge or abate those clear Bonds because they did relate to Bills and Orders upon which payment was made and except those Bills and Orders can be produced the Letters relating thereto can have no effect for it must be presumed that the Bills and Orders have been retired by Walter Hamiltoun as having been allowed in other Bonds which then have been delivered by VValter to Andrew Reid it being the ordinar course amongst Merchants to interchange Bills and Bonds without any other Discharge neither do they take notice of their Missives relating to such Bills or Orders nor can it be supposed they can remember the same The Auditors in this Accompt having taken the opinion of several knowing Merchan's anent their Customs in this point they did all report in Writ and did all agree in this that missive Letters relating to Bills Orders or Discharges had no effect unless the Bills Orders or Discharges were produced and that Merchants neither did nor could have notice of such Missives to retire or interchange the same they did also visit Walter Hamiltouns Compt Book by which there appeared several other Bonds and Accompts betwixt the Parties beside these And in which also the sums contained in these Letters were set down as payment in part of the other Bonds and Compts whereby it appeared that the Bill and Order mentioned in the Letter were interchanged with the former Bonds The Lords found that the missive Letters relating to the Bill and Order had no Effect unless the Bill and Order were produced Hugh Moncrief of Tippermalloch contra Magistrates of Pearth Iuly 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth from whence he having escaped he pursues the Magistrates of Pearth for payment of the Debt who alleadged absolvitor First Because their Tolbooth was sufficient and the Rebel had escaped vi majori having broken the Stone in which the Bolt of the Tolbooth Door entered and forced the Lock in the time of Sermon and that immediately after the Rebel escaped out of the Town and was met with Friends that were trysted there at the time of his escape 2dly They had laid out all wayes thereafter to search for
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
alleadged that the Cause having lyen over several years must be wakened It was answered that there being a Decreet pronunced there was no more Process depending and so needed not be wakend It was answered that a Decreet though pronunced not being conditional to a day but being absolute and thereafter stopped in respect the stop takes off the Decreet the Process is in statu quo prius It was answered that the stop doth not recal the Decreet but only hinders the Extract thereof till the Supplicant be further heard and it is his part to insist in the Bill and that it would be of very evil consequence if stopped Decreets were recalled for then not only wakening would be necessar but in case the Parties should Die Transferance should be raised and seing wakenings are not requisite in concluded Causes much less after Sentence is pronunced The Lords found no necessity of wakening but allowed the Defender to propone what further he had to alleadge Laird of Balfour contra Mr. William Dowglasse Iuly 4. 1671. THe Earl of Airlies Estate being Apprized by Mr. William Dowglasse since 1652. after the Legal was expired Mr. William was Infeft and after his Infeftment the Laird of Balfour Apprized the same Land and thereupon pursues the Tennents for Mails and Duties It was alleadged for the first Apprizer that he must be preferred First Because he has the only Right having an Apprizing expired and Infeftment thereon before the Pursuers Apprizing was Led so that eo momento that he was Infeft upon his expired Apprizing the common Debitor was fully Denuded and there was no Right of Reversion or any other in his Person that could be Apprized thereafter It was answered that by the Act of Parliament 1661. between Debitor and Creditor It is provided that all Apprizings Led within year and day of the first effectual Apprizing shall come in therewith pari passu and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment he must come in with him pari passu by the said Act which makes no difference of expired or unexpired Apprizings and by that same Act the Debitor is not so Denuded by the expiring of the Legal and Infeftment but that year and day is still allowed to subsequent Apprizers which in effect is a prorogation of the Legal as to Concreditors It was answered that the Act of Parliament is opponed bearing that Apprizings before or within year and day after the first effective Apprizing shall come in pari passu as if one Apprizing had been Led for all which necessarly imports the calculation of the year to be from the date of the first effective Comprizing and not from the date of the Infeftment or Diligence for the coming in as if one Apprizing had been for all must relate to the Decreet of Apprizing which as it is clear by the Letter of the Statute so also by the Narrative and Motive thereof bearing that Creditors did not know the condition of their Debitors Estate which might be Apprized before they could do Diligence whereas before they had only the benefit of Reversion for remeed whereof the Parliament brings in all Apprizings that are before or within a year after the first effectual Apprizing which before would have carried the sole Propertâ— and factione juris states all these Apprizings as Led in one day so that the remeed is sufficient by having a full year after the date of the Apprizing and Correctory Statutes are to be strictly Interpret and if the date of the Diligence be the Rule an Apprizing after twenty year might be brought to admit a new one deduced after all that time and not only so but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led It was answered that the year indulged by this Act of Parliament to Concreditors must be from the time the Apprizing is effectual for the words of the Statute bears all Apprizings before or within a year after the first effectual Comprizing c. so that the year must not run from its being an Apprizing but from its being an effectual Comprizing and so from the Infeftment or Diligence neither is the inconvenience shunned otherwise for the only way then known for publication of real Rights was the Register of Seisings and not the Register of the Allowance of Apprizings which is only made necessar by an Act since and it is very easie to make simulate executions of Apprizings by taking away the Copies of Denunciation of the Ground and Citation at the dwelling House of the Debitor but if once a Seising be in the Register all provident men take notice thereof and albeit a Charge be sufficient in stead of a Seising which is not Registrat yet the ordinar way of compleating Apprizings which the Law notices is Infeftment and seing Apprizings are now rigorous Rights carrying any Estate without consideration of the value Acts Correctory of them ought to be extended ex aequo and the more wayes Concreditors have for getting notice of the Apprizing of their Debitors Estate the better neither are the evil consequences upon the other hand of any moment it being the first Apprizers fault if not his fraud that he obtains not Infeftment or does Diligence therefore for he may of purpose lye dormant not only till year and day run but untill the Legal expire and thereby cut off the Diligences of all other Creditors as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds and all the other Creditors excluded so that the Apprizing is so far from making the case better that it makes it much worse as latent and fraudulent for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led but that he would have used Diligence within the year at least within the Legal for so soon as he saw a Seising in the Register he did immediatly Apprize The Lords preferred the first Apprizer and excluded the second and found that the year is to be reckoned from the date of the first effectual Apprizing and not from the Diligence whereby it becomes effectual In this Process the Lords Sustained this Reply that the first Apprizing was to the behove of the common Debitor or his eldest Son and that they would purge the same by payment of what Sums were truly payed for it to the Apprizer according to the said Act of Parliament 1661. without any Reduction or Declarator Helen Hume contra The Lord Iustice Clerk Eodem die THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter obliging him and his Heirs to pay the Sum to her at her Age of ten years compleat with Annualrent so long as she should suffer the same unpayed and then subjoining this Clause that in case she should die unmarried the Bond should be void Whereupon the said Helen pursues the Lord
The Pursuer Repâ—yed that the Prescription was interrupted in so far as a part of the Principal Sum was payed within the years of Prescription It was answered for the Defender that the payment being mode to the Daughters of the principal Sum it could have no effect as to the Annualrents preceeding Iean Blairs Death which belonged not to her Daughters as persons Substitute in the Bond but to her Executors so that the Bond might well be preserved as to the principal Sum and yet prescribe as to the Annualrents these being two several Right and stated in several Persons It was answered That the Interruption by payment was sufficient for preserving both Principal and Annual for Prescription being odious any Deed by which the Debitor and Creditor acknowledge the Right within the fourty years is sufficient not only as to the interest of the particular Actors but as to all others who have interest in the same Right as payment of any part of the Annualrent by one Person preserves the whole Right against all the Cautioners and Co-principals though they neither payed nor were pursued within fourty years so payment of any part of the Principal must in the same manner preserve the Right of the Bond as to all Annualrents to whomsoever they belong if they be not fourty years before that Interruption by payment of a part of the principal Which the Lords found Relevant This was stopped on the Lords own consideration without a Bâ—ll from the Parties because by common Custom though Annual had been constantly payed for fourty years yet all preceeding prescribed whereupon it was contrarily Decerned thereafter February 7. 1672. Alice Miller contra Bothwel of Glencorse Eodem die ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack and the Writer and Witnesses of the Tack being Examined upon Oath did Depone that they did not see Alice Miller Subscribe and one of them Deponing that he had Subscribed at Glencorses instigation who told him that he had caused set to Alice Millers Name only one Witness who was Writer and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand The Lords having this Day Advised the Cause found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller and did therefore improve the Minute but found it not proven who was the Forger of the said Alice Millers Subscription Captain Guthrie contra The Laird of Mccairstoun Iuly 25. 1671. CAptain Guthrie having Married Dame Margaret Scot and she dying in Possession of the Lands of Mannehill Laboured by her Husband and her in the Moneth of April Mccairstoun as Heretor of the Land craves the Rent of the Land for that year in respect the Liferenter neither lived till the first Legal Term which is Whitesunday nor till Martinmasse It was answered that by immemorial Custom Liferenters have Right to the Cropt of Lands Sowed by themselves whether they attain to the Term of Whiâ—esunday or not neither were they ever found lyable for any Duty therefore Which the Lords Sustained Robert Baillie contra Mr. William Baillie Iuly 27. 1671. THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William Baillie eldest Son to his Deceased eldest Son is in the first place and to him is Substitute Robert Baillie Lamingtouns second Son and the Heirs of his Body reserving to the said Robert his Liferent from the Fee of his Heirs in case they succeed and failzying of Roberts Heirs to Master William Baillie Lamingtouns Brother Son after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William Baillie on the one part and Robert on the other by which Lamingtoun obliges himself to pay to Robert the sum of six hundreth merks during his Life and Robert Renunces and Dispones to Lamingtoun his portion natural and Bairns part of Gear and all Bonds and Provisions made to him by his Father and all Right he has to the Estate of Lamingtoun or any part thereof and that in favours of this Lamingtoun and his Goodsires Heirs males contained in his Procutry of Resignation Robert Baillie raises a Declarator against Lamingtoun and Mr. William Baillie for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun failzying of this Laird and his Heirs and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun but to no future Right or hope of Succession seing there is no mention either of Tailzie or Succession in the Contract It was alleadged Absolvitor because Robert getting 600. Merks yearly he can instruct no Cause for it but this Renunciation which must necessarly be so interpret as to have effect and so if it extend not to exclude him from the Tailzie it had neither a Cause for granting the six hundreth merks nor any effect thereon It was answered that Robert being a Son of the Family and Renuncing his Portion natural it was a sufficient Cause and though there were no Cause such general Renunciations could never be extended to future Rights or hopes of Succession unless the sum had been exprest Which the Lords found Relevant and Declared accordingly Sir Iohn Keith contra Sir George Iohnstoun Iuly 28. 1671. THe Estate of Caskiben being Appryzed by Doctor Guil Sir George Iohnstoun the appearand Heir acquired Right to the Appryzing in the Person of Phillorth who by a Missive Letter acknowledged the Trust upon which Letter Sir George raised Action against Phillorth to compt for his intromission and Denude himself and upon the Dependence raised Inhibition yet Phillorth sold the Estate to Sir Iohn Keith who to clear himself of the Inhibition raised a Declarator that the Inhibition was null and that his Estate was free of any burden thereof because it wanted this essential Solemnity that the Execution against Phillorth did not bear a Copy to be delivered and that the Executions being so Registrat he being a Purchaser for a just price and seing no valid Inhibition upon Record he ought not to be Burdened therewith The Defender alleadged Absolvitor Because First The delivering of a Copy was no Essential Solemnitie neither does any Law or Statute ordain the same much less any Law declaring Executions void for want thereof and albeit it be the common Stile yet every thing in the Stile is not necessary for if the Messenger should have read the Letters and showen them to the Partie he could not say but that he was both Certiorat and Charged not to Dispone 2dly The Executions bear that Phillorth was Inhibit personally apprehended 3dly The Inhibition comprehends both a Prohibition to the Party Inhibit and to all the Leidges at the Mercat Cross at which the Execution bears a Copy was affixed so that whatever defect might be pretended as to Phillorth this Pursuer
because he represents Frazer of Phillorth his Grand-father who Disponed the Lands in question to Doors and was oblieged to infeft him and did de facto resign in the Kings hands in his favour and so personally objection umquhil Phillorth Doors Author would be for ever excluded from objecting against Doors Right which flowed from him so neither can the Defender who represents him object against the Pursuer who is Successor in Door 's Rights The Defender answered that being called albeit he had no Right in his Person he might propone a Defense upon a Nullity in the Pursuers Right viz. that it is a non habente potestaâ—mâ— which is very competent here by exception This Declaâ—ator â—eing judicium petitorium wherein he may well repeat this Defense without necessiâ—y to call Doors because Doors being called in the Improbation all Infeftments in his Person are Improven for not production and so the Reason is instantly verified and albeit he were Successor to his Grand-father which he denys yet he may well alleadge that any Right flowing from his Grand-Father is personal and incompleat and can be no ground of Declarator of Property The Lords repelled the Defenses and found it not competent to the Defender to quarrel the Pursuers Authors Right unless he had a better Right Skeen contra Lumsdean Iuly 19. 1662. SKeen having Charged Alexander Lumsdean upon a Bond granted by Mr. Thomas Lumsdean as principal and the said Alexander as Cautioner he Suspends on this Reason that the cause of the Bond was Bills of Exchange drawn by Verhage upon Kezar in Camphire to be payed to Skeen or his Order which Bills Skeen ordered to be payed to Mr. Thomas Lumsdean's Wife and Mr. Thomas granted the Bond charged on for the saids Bills which Bills were protested upon Kezar's not paying of the Bills as the Protest bears To which protested Bills Mr. Thomas Lumsdean assigned the Suspender and whereupon he now alleadges that he must have allowance of the Bills protested being the cause of the Bond and therefore Skeen himself is lyable for the Bills which must compence the Charger The Pursuer answered that the Reason ought to be repelled because he offered him to prove that albeit the bills were protested for not payment by Kezar on whom they were drawn yet Mr. Thomas Lumsdean having gone back to Verhage who drew them Verhage payed Mr. Thomas and that before the Intimation of the Suspenders Assignation 2ly That Mr. Thomas Lumsdean being Factor in Camphire in his Factor Book upon the 109. page thereof there are four posts of Payment payed by the said Verhage to Mr. Thomas Lumsdean at diverse times conform to the Magistrates of Camphire their report upon the Lords Commission bearing that the said Factors Compt Book is Authentick and unvitiat and that Verhage who drew the Bills and Kezar upon whom they were drawn had both sworn before them that Verhage had payed the same to Lumsdean so the question was upon the manner of probation whereanent the Suspender alleadged 1. That Compt Books not being subscribed were not probative Writs even against the Merchant himself 2ly That at least they cannot prove against the Suspender his Assigney 3ly That they could be no better then Holograph Discharges by the Cedent which cannot instruct their own Date against the Assigney and so cannot prove the same to have been before the Intimation as for the Testimonies of Verhage and Kezar their Testimonies cannot take away Writs and yet are suspected being both Debitors for the Bills and that it was not instructed who write the Book whether Lumsdean himself or his ordinar Book Keeper The Lords found the Probation sufficient against the Assigney the Charger also proving that the Books were written by Lumsdean himself or by his â—rdinar Book-keeper and thought that the Book proved against this Assigney being Mr. Thomas own Brother and no suspition he would wrong him and there being four several Posts of payment in several Months besides the Depositions of the foresaids persons Fiddes contra Iack Iuly 19 1662. FIddes pursues Iack for payment of a Bond of 500. merks which Iack acknowledged to have received in custody form Fiddes to be keeped as his own Iack alleadged that he had but the custody and did conform to his Obligation he sent the Money to Dundee in Anno 1650. where he lost both it and much more of his own at the plunder of Dundee The Pursuer answered no way granting that his Money was lost at Dundee yet it ought not to liberat the Defender because he oft-times required and desired the Defender to pay him his Money before the plundring of Dundee and seing he did not then give it it was lost upon the Defenders hazard The Defender answered that any requisition was made was but verbal without Instrument and that it was made to the Defender being in Edinburgh after this Money and the Defenders whole means was sent to Dundee for safety and that at the time of any such desire he shew the Pursuer so and bid him send for it to Dundee when he pleased he should have it The Lords before answer having ordained Witnesses to be examined hinc inde and having advised the same found that the Pursuer did desire his Money and at that same time the Defender told him it was at Dundee and said he might have it when the pleased to send for it and Witnesses also proved that he was at Dundee and was in esteem as a man of good means then and that he was there aâ—the plunder of Dundee and ever since was in a poor miserable condition and some of them deponed that he had a considerable sum of Money far above this in question there The Question was whether this probation was sufficient to assoilzie albeit none of the Witnesses did particularly Depone that they knew the Pursuers Money to have been at Dundee and lost there Tâ—e Lords found that the probation was sufficient the Pursuer giving his oath in Supplement that it was there and lost there for they considered that at the time of the Pursuers Requisition the Witnesses proved the Defender declared it was there and that ex natura rei it was hard to prove particularly this Mony being a Fungible to have been lost there but that it behoved to be presumed so seing the man lost his whole means there and hath been poor ever since Montgomery of contra Eodem die MR. William Wallace having obtained a Disposition of the Lands of Hagburn from Thomas Hunter he gave a Back-bond oblieging him to sell the same at the best avail and as a part of the price to pay a Bond of Provision to Thoma's Sisters and Brother granted by their Father and having retained his own Sums and such as he was Cautioner for was oblieged to count for the rest and being first pursued before the Englishes and now before the Lords he was decerned to take the Lands at sixteen years purchase and a half and to count