Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
Sr. John Nisbet of Dirleton Lord Advocat One of the Senators of the Colledge of Iustice And one of his Maties most honble Privy Council etc. DISCâ—â—E IUSTITIAM D. Paton delin R. White sculp SOME Doubts Questions IN THE LAW Especially of SCOTLAND AS ALSO SOME DECISIONS OF THE LORDS OF COUNCIL and SESSION COLLECTED OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the Principal Matters in the said Decisions EDINBVRGH Printed by GEORGE MOSMAN and are to be sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII ADVERTISEMENT TO THE READER THE Deceast Sir JOHN NISBET of Dirleton His Abilities in the LAWS and generally in all Learning procured him the Employment of Kings Advocate And one of the Lords of Session and other Honourable Places deservedly conferred upon him in the time of His late Majesty King CHARLES the Second His long Practice and profound Knowledge in Our Laws gave the Rise to the following Doubts and Questions Which if he had Lived he would have Answered and Cleared as he has done many of them to the great satisfaction of our Ablest Lawyers and great improvement of our Law The Decisions are What his Leisure from publick Office could allow him to Observe and were ever thought so Succinct and Judicious that most Lawyers were at Pains to cause Copy them from the common Manuscripts though neither full nor Correct which now in the Printing is carefully helped At Edinburgh the fifteenth day of July 1697. Years THE Lords of His Majesties Privy Council Do hereby Grant to George Mosman Stationer Burges of Edinburgh his Heirs or Assigneys The sole Priviledge of Printing and Selling a Book Entituled Some Doubts and Questions of the Law Especially of Scotland As also The Decisions of the Lords of Session Observed by Sir John Nisbet of Dirleton Advocate to His Majesty King CHARLES the Second Together with An Index to the saids Decisions And discharges all other Persons whatsomever to Re-print Vend Sell or Import any of the saids Books for the space of nineteen Years after the day and date hereof under the Pain and Penalty of the Confiscation of the said Books to the said George Mosman for his own use and behoof and of the Sum of an hundred Pounds Scots to be payed by the Re-printers Sellers or Importers of the said Book to the said George Mosman Extracted by Me GILB ELIOT Cls. Sti. Cons LIST OF THE Several Heads of the following Doubts and Questions A. ADjudications page 1 Advocation by the Justices 2. Alimenta 3. Altarage Ib. Annexation to a Barony in another Shire Ib. Annualrent Ib. Annualrent for Damnage 4 Right of Annualrent Ib. Relicts Annuity 5. Annus Vtilis Ib. Appellatio Ib. Appellatio a Camera Imperiali Ib. De Appellatione a Praefecto Praetorio aliorum Judicum sententiis 6. Appellatio a Vicario Ib. Approbatio Ib. Arrestment 7. Arrestment of Conditional Debts 8. Arrestment Loused Ib. Per Aversionem Ib. B. Back-bonds to the Exchequer Ib. Bairns Part. 9. Bond Heritable Ib. Bond Moveable 10. Bonds of Provision to Children Ib. Bond of Relief Ib. Baron Courts 11. Bastard Ib. Bishops 12. Bishops Debts Ib. Bodomaria page Burghs Liferent Escheat Ib. C. Camera Imperialis Ib. Captions Ib. Casualities of Superiority 13. Causa cum qua Res transit Ib. Cautioner and Relief Ib. Chaplainrie Ib. Charge to enter Heir 14. Chattels Real Ib. Children and Creditors Ib. Childrens provisions Ib. Civitas Ib. Clauses in Contracts of Marriage 15. Coals 16. Collation Ib. Commission not to Expire morte Mandatoris 17. Commissioners to the Parliament Ib. Commontes Ib. Common Appendant 18. Communio Ib. Compensation Ib. Composition for Entry 19. Compriser Ib. Comprising Ib. Infeftments upon Comprysing 23. Conditio Ib. Confession by Criminals 24. Confirmation Ib. Confiscation 26. Confusione tollitur obligatio Ib. Conjunct-Fiar 27. Conquest 27. Consensus 28. Consensus Domini Ib. Consent Ib. Anent Consistories Whereby the Usefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are cleared 29. Consolidation 35. Decreets contra Consortes 36. Corporations 37. Creditors of the Defunct Ib. Persons convict of Capital Crimes Ib. Curator Ib. Curatores ad Lites Ib. D. Damnum cum quis utitur Jure suo 38. Death-Bed Ib. Debitor and Creditor 39. Nomina Debitorum Ib. Strangers Debts Ib. Debitum Annuum 40. Debitum in Diem Ib. Decimae Ib. Decreets of the Lords of Session Ib. Deeds both inter Vivos Mortis Causa Ib. Dependence 41. Destination of Succession Ib. Desuetudo Ib. Dies coeptus Ib. Dilapidation Ib. Dishablitation 42. Power to Dispone notwithstanding the giving away the Right of Fee Ib. Dispositio collata in arbitrium alterius Ib. Disposition 43. Actio ad Distractum 43. Division of the Duties of Lands betwixt Buyer and Seller Ib. Donatio inter Virum Vxorem Ib. Donatio mortis Causa 44. Donatio non acceptata Ib. Donators upon Recognition and Forefaulture 45. Duels and Hame-sucken Ib. E. Emancipatio Ib. Contractus Emptionis a Pretio incipiens aut Mensura Ib. What way the Buyer may be urged to Enter Ib. Entry of Assigneys upon Resignation 46. Entry upon Resignation by a singular successor Ib. Liferent Escheat Ib. Escheat single 48. Escheat without Backbond Ib. Delivered Evidents 49. Exception against the Cedent if always competent against the Assigney Ib. Executor Ib. Executor Creditor 52. Executor Nominate Ib. Executory Ib. Extent 54 Extinguishment of Rights Ib. F. Faculty to alter Ib. Faculty to Dispone Ib. Jus Facultatis Ib. Personal Faculty 55. Quae Facultatis sint Ib. Quomodo intelligendum Facultati non praescribi Ib. Faculty reserved to dispone Ib. Fee 56. De Feodo Pecuniae Nominum 57. Feus 67. F uda Nobilia Ib. Fiar Ib. Fiars of Bonds 68. Fiars in TailÈies 69. Fictio Juris 70. Fiscus Ib. Commissa Fisco Ib. Flumina Ib. Flumina Publica Ib. Forfaulture 71 Forisfamiliation 77 Funeral Charges Ib G. Gestio Haeredis 78. Gift Ib. Gift of Escheat with Backbond 79. Gifts of Forefaulture Ib. Gifts of Recognition Ib. Gift of Ward 80. If Gifts of Ward and Non-entry prejudge singular Successors Ib. Goods belonging to the Rebels at the Horn. Ib. Grana crescentia Ib. Great Seal 81. H. Heirs Ib. Behaving as Heirs 82. Heir of Conquest Ib. Discussion of Heirs 83. Heir and Executor Ib. Heirs Male 84. Obligements in Contracts in favours of the Heirs of the Marriage 85. Heirs Portioners 87. Heirs of Provision and substitute Ib. Heirs of TailÈie Ib. Quo casu Heirs of TailÈie may be considered as Creditors 88. Haereditas 89. Aditio haereditatis Ib. Haeres Contrahens Ib. Repudiatio Haereditatis Ib. Servus Haeres Ib. Vltimus Haeres Ib. Heirship Moveable 90. Money consigned for Redemption whether Heritable or Moveable Ib. Sums Heritable or Moveable Ib. Homologation Ib. Horning 91. How far a Husband is lyable for his Wifes Debt Ib. De Hypothecis Vulgo Wadsetts 92. Tacite Hypotheck 94. I.
Scotland it may be affected If a Prince may command a Subject living Abroad under his Enemy to retire and come home And if he disobey may he be proceeded against and be divested of any Fortune and Liberty competent to him as a Native Quoties Rex Princeps vel alius in alterius Regis vel Principis Territorio bona habet possidet ratione quorum Juramentum fidelitatis praestare solitus est per hoc non efficitur ratione suae personae seu personali obligatione subditus aut subjectus nec quoad personam sortitur forum nisi secundum quid ita ut pro tali possessione bonorum conveniri possit coram Judice loci in cujus Territorio bona sunt Thes Bes in litera H. 70. Huldigung p. 402. Substitutes A Bond for a Sum of Money being granted to Sempronius and FailÈieing of him by decease to Titius and Titius his Heirs and Assigneys Quaeritur who is Fiar Answer The first person Titius being only substitute FailÈieing of him by decease and Successor in spe Quaeritur If Sempronius may dispose of the said Sum by Testament as he may inter vivos Ratio Dubitandi That Titius is substitute by a deed inter vivos Answer It is thought he may Seing such Deeds are upon the matter Donationes mortis causa in which voluntas est ambulatoria Quaeritur If the said Substitute will be lyable as Heir of TailÈie It is thought he should be lyable Seing if there were an Infeftment in the terms foresaid the Substitute could not succeed but as Heir of Provision If a Bond bearing the Substitution foresaid be registrate Quaeritur If the Substitute being named as said is may charge thereupon Answer It is thought not because the Bond being registrate is a Decreet as to the first Person but the Substitute having only right instar haeredis by Succession he cannot charge no more than an Heir of Provision Substitutio SVbstitutio est Designatio secundi vel ulterioris haeredis Substitutio vulgaris est ea quae fit in casu vulgari haereditatis non aditae nec acquisitae Perez Institut lib. 2. tit 15. Substitutio Pupillaris est qua Parentes Liberis suis in potestate sua impuberibus substituunt in casu mortis ante Pupillarem aetatem acquisitae haereditatis Constitutione Divi Marci Veri substituens in alterutrum casum duntaxat vel Vulgaris vel Pupillaris substitutionis in utrumque substituisse intelligitur alterum sciêª expresse alterum tacite Perez Ibidem Quaeritur De substitutionibus in Taliis nostris istis verbis viz. Cum Terrae disponuntur Titio haeredibus suis de corpore suo prognatis quibus deficientibus haeredibus masculis c. utrum sunt pupillares an vulgares Responsio Eas utramque Substitutionem continere Deficientibus enim Haeredibus institutis in primo gradu quolibet casu sive non adierint sive haereditatem adierint defecerint ad substitutos haereditas pertinet Substitution in Bonds A Bond being granted to the Creditor and failÈiening of him by decease to another person Quaeritur If the Person substitute will be lyable to the Creditors Debt at the least pro tanto Seing the Sum was in bonis and his Debt ought to be satisfied out of his Estate If such Bonds may be altered by the Creditor not by uplifting which he may do being Fiar but also by changing the Bonds and taking the same to himself and any other person or to his Heir Seing the Bonds seem to be a perfect Donation in favours of the Substitute and on the other part they may be thought mortis causa If the Creditor may dispose of such Sums by Testament A Bond being granted by diverse Persons to my Lord Dundonald and failÈiening of him by Decease to his Son the Lord Cochran his Heirs and Executors and after the decease of Sir John Nicolson one of the Debitors he having taken a Bond of Corroboration from his Brother Sir William to himself and failÈiening of him by decease to his Grand-child then Lord Cochran his Father being deceased Quaeritur Seing the first Bond stands as to the rest of the Debitors Whether the Lord Cochran his Fathers Executors will have Right to the same And what course shall be taken to get the Right of the former Bond settled in Cochran's Person Quaeritur If the former Bond being null and in the Bond of Corroboration there be an Obligement to Infeft if the nature of the Sum as to the former Quality of Moveable be altered A Bond being granted to Robert Selkirk Merchant in Edinburgh and Katherine Inglis his Spouse the longest liver of them two in Conjunctfie and failÈiening of them both by decease to Robert Selkirk their lawful Son and to the Bairns lawfully to be procreat of his Body which failÈiening to the other Heirs lawfully procreate or to be procreate betwixt the said Robert and his said Spouse Which all failÈiening to the said Katherine Inglis her own nearest and lawful Heirs Executors or Assigneys with this Provision That it shall be leisum and lawful to the said Robert Selkirk Elder at any time dureing his lifetime vel in articulo mortis by himself alone to uplift discharge or otherways assign and dispone the Sums in the said Bond in haill or in part to any Person or Persons he shall think expedient and to make and grant all Writes Rights and Securities requisite thereanent in due and competent Form without the Consents and Subscriptions of the said Katherine Inglis his Spouse and Robert Selkirk his Son or his foresaids had or obtained thereto in any sort The abovementioned Robert Selkirk the Husband and Robert Selkirk his Son being both deceased without Heirs either of the Body of the said Robert Selkirk Younger or of the Marriage betwixt the said Robert Elder and the said Katherine Inglis so that the said Katharine has Right to the said Bond Quaeritur Whether the same will pertain to her in her own Right as Fiar or as substitute in the last place and representing the Fiar And who is Fiar by the said Bond Whether the said Robert Elder his Son or the said Katharine who pretends to be Fiar because the Right of Succession terminats upon her and her Heirs It is Answered That albeit when a Bond is conceived simply to two Persons in Conjunctifie and the Heirs of one of them the Person to whose Heirs the Sum is provided is understood to be Fiar yet when there are diverse degrees of substitution of the Heirs of diverse Persons the Person whose Heirs are first substitute is Fiar and both his own Heirs substitute in the first place and the other Heirs of any other Person substitute after them will be Heirs of Provision to him As when a Bond is taken to a Husband and his Wife the longest liver of them in Conjunctfie and to the Husbands Heirs whilk failÈiening to the Wife her self and her Heirs tho the Right of Succession as to the
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls
Provision as charged to Enter Heir respective It was alledeged for the Heir of the first marriage that he offered to renunce And for the Heir of Provision that the Heir of Line ought to be first discussed by adjudication and condescended upon movable Heirship which might be adjudged It was Answered for the Heir of Line that his Father having provided him had taken from him a Renunciation of all that could belong to him as Heir So that he could have no Right to the movable Heirship which in respect of his Renunciation would be considered as other movables and fall under Executrie It was Replyed for the Heir of provision that by the Renunciation the Heir of Line had renunced his kindness to the effect his Father might have power to dispose of the Heirship but his Father not having disposed thereof the Right returned to the Heir of Line again the Renounciation being in favours of him and his Heirs as in Renounciations of that nature as to Lands if the Father does not dispose of the same they will notwithstanding belong to the Heir Some of the Lords thought there should be a difference betwixt Lands and Movable Heirship In respect the Right of Lands whereof the Father died infeft cannot be Setled in the person of any other but the Heir who therefore ought to have Right notwithstanding of the Renunciation But the Movables which should fall under Heirship by the Renunciation of the Heir cease to be Heirship and may be confirmed as other Movables Others Thought that the Effect of such Renunciations should be the same as to Movables and Lands the Fathers intention being one and the same for both and therefore as the Right in the construction of the Law returneth to the Heir of the Father who doth not otherwise dispose of his Lands there is the same reason as to movable Heirships And as to the pretence foresaid it is of no weight seing if it were the Intention of the Father that by such Renunciations the Son should be denuded without Return though the Father should not dispose of his Lands the Son may be pursued and forced to denude himself that his Renunciation may be effectual in favours of the nearest of Kin. The Lords before answer ordained the Renunciation to be produced that they might consider the Tenor of it D. 108. Tacksmen of the Custumes contra Greenhead Eod. die THe Custums of the Borders being set in Subtack to Greenhead and others by the Tacksmen of the haill custumes of the Kingdom Greenhead is pursued as representing his Father one of the Subtacksmen for the dutie the year 1650. It was alledged That the Subtack was altogether unprofitable upon the occasion of the English Invasion so that Beasts and other Goods were not imported nor Exported that year as they had been in use formerly It was Answered that albeit in praediis Rusticis in case of Sterilitie Vastation and such other Calamities that cannot be avoided There may be abatement craved Remissio Canonis yet in this case the Subject being conductio rei periculosae Jactus Retis the Subtacksmen ought to have no abatement and are in the same case as Tacksmen of Salmond fishing who will be lyable for the duty albeit no profit arise to them The Lords Found That Subtacksmen should have abatement But the Question being most Quatenus and concerning the proportion because though the Subtacksmen had undoubtedly loss yet it was not Total there being some Commerce betwixt the Kingdoms for that year some Moneths It was Found in end upon hearing of Parties that the half of the Dutie should be abated Actores Lockhart Cuninghame Alteri Sinclair Mr Thomas Hay Clerk The Law is very clear ff Locati and the Doctors upon that Title not only in praediis but in conductione vectigalium and the like in case of an insuperable Calamity remittitur Canon merces but they are not so clear as to the Quatenus and proportion of the abatement when the detriment is not Total But it is just the abatement should be proportionable to the loss And accordingly The Lords decided D. 109. Justice Clerk contra Lambertoun 23. Nov. 1667. IN the case the Justice Clerk contra Lambertoun the probation anent the value and worth of the Woods pertaining to the Justice Clerk and cutt and intrometted with by Lambertoun being advised It was considered and represented by some of the Lords that had been Commissionated to examine the Witnesses adduced by both parties being allowed to have a joynt probation that the probation was dubious the Witnesses for the Pursuer declaring too highly and the Witnesses for the Defender too low as appeared And that the Subject of the Question not being de re which is the proper Object of Sense but de rei valore qui cadit sub Judicium Intellectum The Testimonies of the Witnesses are not de rei veritate but de credulitate opinione and therefore are not numeranda sed ponderanda according to the circumstances both of their oun quality and the quality of the Declaration whether they have declared verisimilia and whether animose and such like and whether they have given a probable reason of their knowledge That in this case the Witnesses that have deponed most to the advantage of the Pursuer are his own Tennants and one of them a Smith his Officer that they give the reason of their Knowledge that they dwelt in the bounds which is not sufficient unless they had been periti and Conversant about the matter of Woods and the Buying and the Selling and the valuing of the same That some Witnesses for the Defender had given their Judgment upon oath as strongly and pregnantly as they though they be not so many So that the probation at best is but dubious and in dubiis minimum sequendum at the least the Lords have a latitude to found their Judgment upon the Testimonies of both cum temperamento and without adhering percisely to either The Lords Found nevertheless by plurality That they should have respect to what had been proven by the most part And accordingly Decerned D. 110. Rankin contra Skelmorlie and Dunlop eod die IN a double poinding at the instance of the Lord Melvil there being a Competition betwixt two Creditors of Antonia Broun Daughter and Heir to Sir John Broun The Lords preferred Skelmorly the first Arrester Though Rankin had obtained a Decreet to make forthcoming and had compleated his Diligence and alledged that an Arrestment is but an inchoate Diligence and doth not hinder any other Creditor to compleat and do more exact diligence by poinding or by a Decreet to make forthcoming which in Debts and in nominibus are equivalent The reason of the Decision was that Skelmorly had not only Arrested but had intented a pursuite before the Lords to make forthcoming before Rankin But Processes before the Lords being more tedious and the Pursuer not Master of Calling Rankin had taken advantage by obtaining a Decreet
conclude the Owners that they should not be heard thereafter to prove that the Loadning belonged to them Some thought it hard that the Skippers fraud or mistake should prejudge the Owners But because in the case there was no ground to persume that the Skipper and Steersman did intend to prejudge or wrong the Owners and the Writs and Certificats produced were all after the Seizure and the Letters which were of anterior dates might have been made up and were all from Persons concerned and there were Documents found in the Ship that could clear that the Loadning did belong to the Owners The Lords Sustained the Sentence unless the Pursuer would qualifie Foroe and Violence and that the Depositions were Extorted Hay Clerk D. 121. Homes contra Paterson 17. Dec. 1667. IT was Found that the Attester of the sufficiencie of a Cautioner being pursued for the Debt the Cautioner being distrest and discust and not Solvent and the Attester having alledged that he offered to prove that the Cautioner was then the time he became Cautioner habitus reputatus Responsal idoneus as to the Debt The alledgance is relevant and the Attester no further lyable D. 122. Sir Thamas Nicolson contra the Laird of Philorth 18. Dec. 1667. PHilorth elder being pursued as representing his Grand-Father for payment of a Debt due upon Bond granted by the Earl Marischal and his Grand-Father as Cautioner It was Alledged that the Bond being Dated above fourty years ago was perscribed It was Replyed that interruption had been made by payment of the Annualrents by the principal Debitor It was Answered it was prescryved as to the Cautioner there being no interruption by any Document or pursuit against him or payment by him The Lords repelled the Defence in respect of the Reply and Found that the ground of prescription as to personal actions being odium and negligentia non petentis that it doth not militate in this case the Creditor haveing gotten Annualrent so that he cannot be said to be negligent Lockhart alter Cuninghame D. 123. Gilespie contra Auchinleck Eod. die MAry Williamson Lady Cumblidge having Right not only of Liferent but also to the Fee of the said Estate by Comprysing and being about to Marry with Patrick Gilespie her second Husband for settling and preventing Questions betwixt her Children and her Husband she did Dispone the Fee of the Lands to her eldest Son with the burden of 5000. Merks to be payed to her second Son at his age of Twentie one years and to Entertain him in the Interim And at the same time her eldest Son did grant and sett a Tack to the said Patrick for a year after his Mothers decease if he should survive her of her Liferent Lands reserved in the Disposition mentioning their purpose of Marriage And that he was to stock the saids Lands and that his Wife might die before him upon which considerations the said Tack is sett At the same time the said Mary did privatly dispone her Liferent in favours of her second Son John Auchinleck who intented a pursuit against her and her said Husband for the Maills and Duties of the Lands for diverse years It was Alledged that the said Right being a privat latent Right the Defender ought to be free of bygones as being bona fide Possessor by virtue of his Wife's Infeftment and his Jus mariti It was Answered That he and his Wife are Eadem persona and she being his author cannot pretend that they possessed bona fide in prejudice of a Right made by her self The Lords Found the alledgances relevant It was further alledged that the Disposition made to the Pursuer was most fraudfully granted in prejudice of the Defender after Treatie of the Marriage and the said publick Transactions in order thereto Which were Equivalent to and to in lieu of a Contract of Marriage the Wife having no other thing besides to dispose of besides her Liferent to which the Husband has Right Jure mariti so that a Contract was not necessary as to that And that the said Right was retained by the Mother and not delivered until she was Married at which time she could not prejudge her Husband and that the Defender had a Reduction depending upon the reasons foresaid The Lords Found the alledgance relevant And found that an Assignation not intimat and not being made for an onerous Cause could not prejudge the Husband having by his Marriage a publick Right Equivalent to an Assignation and therefore assoiled It was not considered whether the Right was delivered or not being found latent as said is D. 124. Wilson contra the Magistrates of Queensferry 2. January 1668. ARchibald Wilson being charged to accept the Office of a Baillie of the Town of Queensferry Suspended upon the Act of Parliament Jam. 3. Parl. 5. Chap. 29. whereby it is statute that Magistrates within Burghs should not be continued longer than a Year and subsumed that he had served the preceeding two Years This case being Reported The Lords Found the Reason Relevant And albeit the Act of Parliament be not in observance specially in Edinburgh The present Provost having been in that place diverse years yet the Ambition and unwarrantable practice of those who violate the said Act and others made to that purpose ought not to prejudge others who are most sober and claim the benefite of the same D. 125. contra 3. January 1668. A Wife provided to an Annualrent in Victual out of certain Lands by her Contract of Marriage did renounce the same and thereafter was Infeft in an Annualrent out of other Lands And upon the said last Infeftment a Process being intented for poinding of the Ground It was Alledged that the Seasin was null being alledged to be given by a Husband propriis manibus and the Assertion of a Notar without any precept or warrand in Writ It was Answered That the Marriage with the Relicts Renounciation of her former Right and her Contract of Marriage being all produced are sufficient Adminicles to sustain the same The Lords enclined to favour the Relict yet they found it of a dangerous consequence that a real Right should depend upon the Assertion of Notars and witnesses And the Question not being whether the Husband might or ought to have given his Wife the said Right in recompence of of her former But whether de facto he did the same Seing the foresaid Writes having no relation to the Seasin either as given or to be given could not be Adminicles to warrand or sustain the same And therefore before Answer it was thought fit to enquire if there had been any Decision in the like case as was informed D. 126. Sir John Home contra The Feuars of Coldinghame 7. January 1668. IN a Process at the instance of Sir John Home of Rentoun Justice Clerk contra The Feuars of Coldingham The Defenders offered to improve the Executions It was Answered They could not be heard unless they would propone the said Alledgance peremptorie but that the same should be reserved by way of Action The Lords for
be Examined for clearing the Trust They Found That by the Probation the Trust did not appear and that the said Declaration in Lecto could not prejudge his Heir unless there had been some further evidence that the Declaration was emitted by the Doctor of his own accord and upon conviction and for Exonering his Conscience which did not appear by the Probation Lockheart and Falconer alteri Long formacus and Cuninghame Gibson Clerk Concluded Cause D. 187. Lady Spencerfield contra Hamilton 10. June 1674. IN the case of the Lady Spencerfield contra Robert Hamilton of Kilbrakmount The Lords Found that the Alledgeance viz. That the Defender could not be Lyable as Intrometter because there was a Gift given of the Defuncts Escheat being Rebel is not Relevant unless the Gift were either declared or were to the Defender himself or that he had Right from the Donator For in the first case he is in condition parallel with an Intrometter in the case of an Executor confirmed and cannot be said to be intrometter with the Goods of a Defunct and bona vacantia the Right of the same being in a living person per aditionem and by confirmation and a third person Intrometting where there is no Declarator who has not the Gift himself nor a Right from the Donator is not in a better case than an Executor decerned And in the case of a Donator Intrometting or the intromission of any other having Right from him there is the pretence and colour of a Right in the person of the Intrometter which is sufficient to purge vitious Intromission They Found in the same case that a person entering to the possession of the Defuncts House by warrand of the Lords Their possession of the Goods in the House doth not infer Intromission unless they make use of such Goods as usu consumuntur or dispose of such Goods as are not of that nature as Beds Tables and such like Robert Hamilton Clerk D. 188. Freeholders of Linlithgow contra The Commissioners to the Parliament 12. June 1674. IN a Suspension at the instance of the Freeholders of Linlithgow-shire against their Commissioners to the Parliament The Lords Found that if the Prorogationes and Recesses of Parliament be for a considerable time so that the Commissioners do or may go home the Commissioners should not have their Fies or Charges dureing the same 2. That if the prorogation be for a short time and the Commissioners having their Residence at a little distance in Edinburgh or Linlithgow shire do or may go home they ought not to have Fees dureing that time 3. If there be Articles sitting dureing that time and they do not go home tho they be not upon the Articles they should have their Fees Because they are concerned to know and inform themselves what is in Agitation in the Articles Newbyth Reporter Monro Clerk D. 189. Bailly Boid contra Store November 7. 1674. THE Lords sustained a Discharge granted by a Master to his Tennent upon payment of his Duty tho it was neither Holograph nor Subscribed before Witnesses but pretended to be subscribed by the Granter Which the Lords did in respect of the Custom and that Masters and Tennents are in use to give and take Discharges without Witnesses And that in the case of Writes Letters and Bills betwixt Merchants the Lords are in use to sustain them tho they want Witnesses and there is the same if not more reason in the case of Tennents by reason of the great and exuberant confidence betwixt them and their Masters Some of the Lords thought it hard to recede from the Law there being no limitation or exception in behalf of Tennents ubi Lex non distinguit nec nos And that there is a great disparity betwixt Merchants and Tennents Compts Letters and Bills of Exchange and other Writs of that nature being secret Transactions betwixt Merchants and their correspondents whereunto Witnesses and other persons neither are in use to be nor is fit they should be privy Whereas Discharges by Masters to Tennents are in use to be and there is no inconveniency that they should be subscribed before Witnesses and there is no difficulty to get Witnesses to them and if they want Witnesses and be not Holograph Masters may be prejudged It being easy to imitate and forge a single subscription and there being no means of improbation of the same D. 190. The Town of Innerness contra Forbes of Colloden and Robertson of Inches and others eod die THis case having been Agitated not without some heat amongst the Lords themselves I thought fit to give an account thereof at greater length than I have used in other Cases and Decisions The Town of Inverness having Charged the said _____ Robertson of Inches and Colloden and other Feuars who hold the Forrest of Drakies and other Lands and Milns and Fishings of the said Burgh for payment of their proportions of a Stent imposed upon them for the use of the Town And they having Suspended upon that reason that the said Stent was unequal as to their proportions and that the Town had not an Arbitrary Power to impose Stents upon their Neighbours and Feuars unless there were an unavoidable at least a pressing necessity and occasion relateing to the good and interest of the Burgh and in that case the Neighbours and Feuars were to be Lyable only in subsidium In so far as the Patrimony of the Town and Common Good should be short and not extend to defray the same The Lords Sir John Gilmour being President for the time did by their Decreet of Suspension Find the Letters orderly proceeded But withall did regulate the way of stenting to be according to the method and Rules set down by the Lords as to the future which are contained in the said Decreet and acquiesced to by the Suspenders the Decreet bearing to be of consent and containing only a Protestation that the Suspenders should not be Lyable to any Stent for maintaining and prosecuting Pleas against themselves Thereafter the Feuars being charged upon another Stent did Suspend upon that reason only that the Regulation and Method appointed by the Lords had not been observed and did intent a Declarator that they should not be Lyable to Stents but such as should be imposed in the way and according to the method foresaid Tho there was no other reason in the said Suspension nor conclusion in the said Declarator but as is immediatly related yet another reason was thereafter insisted upon both in the Suspension and Declarator and they did plead that they were exempted and ought not to be Lyable to any Stent upon any account or method whatsomever by reason that their Lands and in special the Forrest of Drakies were Feued to them for a Reddendo and Feu-duty contained in their Infeftments pro omni alio onere The Case not being fully debated at the Bar Some of the Lords conceiving that the Lands of Drakies were not a part of the Original and Ancient
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
Et non creditur Clerico nisi quatenus constat ex Actis And 2. That there neither was nor could be a Decreet in the said Process In respect the said Suspension was upon other reasons that were Relevant and compensation being in effect satisfaction and the last exception the said Reasons ought to have been first discust viz. That there were diverse Arrestments at the instance of Creditors which should have been purged and that Sir William had Assigned the Debt whereupon he had charged and the Assignation was intimate So that the Suspender could not be in tuto to pay unless the consent of the Assigney were obtained and that the said Sir William was at the Horn and his Escheat gifted and that the Donator did not concur nor consent 3. Tho' there could have been a Decreet and the Arrestments had been purged and the Assigney and Donator consented yet the samen not being Extracted the Suspender might pass from his Reason of compensation seing res was integra before Extracting and the Suspender may eike and verify any other reason that is emergent And there had arisen a most relevant Reason and Defence to him upon the said Act of Parliament anent publick Debts of which he ought to have and may plead the benefite in regard Acts of Litiscontestation and Decreets are Judicial Transactions and Contracts and as in other Contracts there is locus poenitentiae before they be perfited in Write so in Acts and Decreets before they be Extracted Parties are not concluded as verb. g. even after Litiscontestation before the same be Extracted a Defence may be proponed and in Declarators concerning Clauses irritant tho Parties will not be admitted to purge after Sentence yet before Extracting they will be heard And even by the Common Law albeit ubi res transit in rem Judicatam sententia non retractatur ex Instrumentis noviter repertis yet before Extracting of the same if Writes be Found which will elide the Pursuers Lybel they will be received It was Answered for the Creditors That in this case res was not integra because the Suspender had so far acquiesced that in effect he had payed the Debt Compensation being equivalent And if before extracting he had made actual payment there would have been no necessity of extracting the same and in this case not only there was solutio ipso Jure in respect of the said Compensation sustained but de facto the Lord Balmerinoch had payed 3 or 4000 merks in satisfaction of the Debt charged for the Compensation being so far short and the Creditors had intented exhibition of a Discharge granted by Sir William Dick to the said Lord Balmerinoch of the foresaid Sum of 4000 merks and a Declarator that in respect of the said Compensation the said Right granted by the said Sir John Smith was extinct The Lords at the desire of the saids Creditors having examined diverse persons anent the said Minut and the giving up of the said Assignation and anent the having of the said Discharge granted by Sir William Dick to Balmerinoch the Creditors at length did pass from their Compearance And now the Cause being again advised the Lords did adhere to their former Interloquitor in Anno 1664. And did Find That before extracting Balmerinoch might pass from his Reason of Compensation and decerned in the said Process at Balmerinoch's instance against the Tennents of Northberwick Reserving to the Creditors their Action of Exhibition and Declarator as accords D. 204. Kinloch contra Rate 15. Decemb. 1674. THE deceast Mr. Robert Kinloch Portioner of Luthrie having granted after he was married a Liferent Right to his Wife by Infeftment in some of his Lands in satisfaction of any further Provision did thereafter give her an additional Jointure and Infeftment in other Lands after which he did give a Right of Annualrent forth of the Additional Lands to his Daughter Janet Kinloch The Daughter and her Husband Mr. John Dickson did intent a Poinding of the Ground upon the said Right of Annualrent in which Process Jean Rate Relict of the said Mr. Robert compeared and defended upon her foresaid Rights being anterior to the said Infeftment of Annualrent It was Replyed for the Pursuer That as to the first Right for Provision of the Wife she did not make question but that being in Satisfaction of any other Provision as said is the additional Right granted thereafter was for Love and Favour and Donatio inter virum uxorem and revocked tacitely by the Pursuers Infeftment of Annualrent The Lords Found accordingly That the said posterior Right was revocked by the Right of Annualrent pro tanto without prejudice to the Relict of the Superplus if any be the Annualrent being satisfied Newbyth Reporter Gibson Clerk D. 205. George Drummond contra MenÈies of Rotwell 16. December 1674. IN the Process at the instance of George Drummond for payment of a Sum due by Alexander MenÈies of Rotwel as intrometter with the Debitors Goods It was Found as in diverse Cases before That the pretence that the Defunct was Rebel and his Escheat gifted doth not purge vitious Intromission unless it be alledged that the Defuncts Escheat was gifted and declared before intention of the cause or that the Defender did intromet either by vertue of a Gift to himself or by Warrand and Right from the Donator for the Defenders Intromission tho the Gift was not declared before the intention of the Cause In respect if there was a Gift declared before the intention of the Cause the Defender is in the same case as if there were an Executor confirmed before the intenting of the Cause and if he had either the Gift himself or a Right from the Donator before he did intromet his Possession ab initio being by vertue of a Title tho not perfected cannot be said to be vitious and quivis Titulus etiam coloratus purges the vitiousness of the intromission Strathurd Reporter Gibson Clerk D. 206. Kelhead contra Irving and Borthwick eod die JOhn Irving Merchant in Drumfries having furnished Mournings Winding-sheet and others necessary for the Funerals of the deceast Earl of Queensberry did take a Bond for the Sum of 1424 merks from the Countess Dowager Relict of the said Earl which tho it did bear only that Narrative that the Lady was addebted to the said John without relation to the Cause foresaid yet it appeared it was for that Cause In swa far as the said Countess being confirmed Executrix to her Husband had obtained an Exoneration and the foresaid Debt contracted for the Funerals was one of the Articles of the same The said Countess having deceased the Earl of Queensberry her Son was confirmed Executor to her and a Decreet being obtained against him at the instance of the said John Irving for the foresaid Debt he suspended upon multiple Poinding against the said John Irving and the Laird of Kelhead and James Borthwick and certain other Creditors The said Laird of Kelhead alleadged that he ought to
Corroboration granted by the Son the Fiar they had Comprysed and were Infeft by publick Infeftments at least had charged the Superior So that their Right being publick and for a true Debt anterior to the Childrens Provision they were preferable to the Children their Infeftment being base The Lords Found That the Children should be preferred In respect the Comprysings were against the Son and the Comprysers could be in no better Case than the Son himself whose Right was affected with the said faculty in favours of the Children So that neither he nor any having Right from him could question the Right granted by vertue of and conform to the said Faculty This Decision being by plurality seemed hard to some of the Lords who did consider that the foresaid Faculty was not only in behalf of the Children but of supervenient Creditors if the Father had thereafter Contracted any Debt and if the Father had given surety to the said Supervenient Creditors by base Infeftments and if his Anterior Creditors before the said Contract had comprysed and had been Infeft they would have been preferred to the said posterior Creditors having only base Rights and multo magis to the Children They considered also That the Estate being by the said Contract Disponed simply to the Son with a Reservation only of the Fathers Liferent and the said Faculty and the Son not being obliged to pay the Fathers Debts by the said Contract if there had been 18000 Merks of Debt anterior to the Contract Anterior Creditors might have pursued the Son for the same not only because he was Appearand Heir and Successor Titulo Lucrativo but because he was obliged by the Contract at least his Estate burdened for the said Sum And the Anterior Creditors might either have taken that course or might have Comprysed the Interest competent to the Father by the said Faculty And seing the Son might have been forced in manner foresaid to satisfy the said Creditors he might have granted Bonds of Corroboration whereupon they might have Comprysed and having comprysed and having gotten publick Rights they are preferable to the base Right of the Children In the same Cause The Creditors did alledge that they ought to be preferred to the Children because their Provision was after their Debt and was without an Onerous Cause And nevertheless the Lords Found the Defence for the Children Relevant viz. That their Father the time of the granting of the said Bonâ— for their Provision had a sufficient Estate besides out of which the Creditors might have been satisfied This Decision being also by the Major part seemed hard to others who thought that a Debitor could do no Deed in prejudice of his Creditors without an Onerous Cause And tho the Father might be looked upon the time of the granting of Provisions to Children as in a good condition and therefore the Creditors to be secure and needed not do Diligence yet if thereafter he should become insolvent the loss ought to be upon the Children and not the Creditors And that it being a principle That a Debitor can do nothing in prejudice of his Creditor without an Onerous Cause It is certainly both Fraud and prejudice that he should not pay his Debt but should give away to his Children that part of his Estate which the Creditors might have affected And Inhibitions being only in these terms That the Party Inhibite should do no Deed in defraud of the Creditor It might be pretended by the same Reason in Reductions ex capite Inhibitionis that the Party Inhibite did nothing in defraud or prejudice of the Pursuer In respect the time of the granting the Bond or Right craved to be reduced he had Effects and sufficiency of Estate beside Lockheart c. for Queensberry and other Creditors Cuninghame Anderson and MckenÈie for the Children and Relict Gibson Clerk In praesentia D. 419. Stewart of Castlemilk contra Sir John Whitefoord 10. January 1677. SIR Archibald Stewart of Castlemilk having pursued a Reduction of a Disposition of the Lands of Coats made by James Stewart of Minto in favours of Sir John Whitefoord ex capite metus In swa far as the said Sir John Whitefoord had taken the said James and kept him in privato carcere for some time and thereafter having a Caption against him had detained him Prisoner and had caused transport and convey him in that condition from diverse places in the night Season and by his Servants had threatned him with long Imprisonment and in end had prevailed with him to dispone to him the saids Lands being eight Chalders Victual of Rent and where there was a Coal of 100. lib. sterl of Rent upon an Obligement only to pay him an yearly Annuity of 400. merks In which process the said Sir John and Duke Hamilton who had thereafter acquired the said Lands from the said Sir John did compear and propone the Defences following 1. That the foresaid Qualifications of Force were not Relevant to import metus qui potest cadere in Constantem virum being neither mortis nor Cruciatus nor so circumstantiate as is required of the Law for founding the said Action And 2 That albeit metus were relevantly qualified the foresaid Deed cannot be questioned upon pretence of the same unless the said James Stewart had been lesed or damnified by the same Seing it appears by the Title quod metus causa c. A Reduction and Restitution upon that head is not competent ubi non est damnum nihil abest as is clear by diverse Texts in the case of a Creditor useing force to get what is unquestionably due to him and in this case the said James had no prejudice in respect he was obliged by an antecedent Minute to dispon the said Lands so that the said Disposition was but for implement of the said Minute which the said Sir John did give back to be cancelled by Minto when he got the said Disposition And 3. It was offered to be proven that after the said James was at liberty the said Disposition was granted by him The Lords Found That the Libel and Qualifications of metus and Force were relevant and yet in respect the Defenders were so positive as to their Alledgance that the Disponer was at liberty when he granted the said Right they allowed a conjunct Probation concerning the said Qualifications of Force and the condition the Disponer was in for the time and the way of granting the said Right whether he was under Restraint and the Impression of Fear or in Freedom Or whether the samen was granted by him freely and voluntarly As to the said other Defence that there was no damnum the Lords repelled the same and would not allow that point of Fact to be tryed whether or not there were a former Minute for Implement of which the said Right was granted And whether it was given back for and the time of the granting of the said Disposition Some of the Lords were of the Opinion That
not starve and that his Grand-Father whom the Defender represents as Heir having provided him as said is to the foresaid Sum to be payed at the time foresaid did acknowledge that he was obliged to provide him being his Grand-Child and that until the time his provision should be payable he and his Heirs were lyable to his Entertainment being Debitum Naturale The Lords this day did Demurre And the case being of consequence as to the preparative thought fit it should be further thought upon D. 3. Ferguson contra More Eodem die IN the case Ferguson contra More the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender unless intimation had been made to the Cedent before the Chargers intimation of the Assignation made to him by the Cedent D. 4. Inter Eosdem eod die IN the same case two Persons being obliged Conjunctly and severaly as principal Debitors to pay a Tocher without a clause of relief pro rara It was found that de Jure inest D. 5. Pringle contra Cranston eod die IN the case Pringle of Greenknow contra Cranstoun Found that a subvassal being infeft by a Baron cum Curiis Bloodwitis may hold Courts and unlaw for Blood D. 6. Eleis contra Keith and Wiseheart 15. Decemb. 1665. IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith having by Bond granted by her Husband and her obliged her self to pay to the said Mr. John the Sum of 6000. merks and for his further suretie to infeft him in certain Lands pertaining to her which bond contained a procuratory of resignation The said bond though null as to the obligement to pay the said Sum was valide as to the Right of the Lands And that the said Elizabeth having thereafter disponed the said Lands in defraud and prejudice of the said Mr John was lyable to the said Mr John and upon that ground The Lords found the said Mr John as Creditor to the said Elizabeth might question any fraudulent Rights made by her to his prejudice D. 7. Grants and Row contra Visc of Stormont eod die DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants of their Right of certain Lands for not production _____ Grants and _____ Row did reduce the said Decreet against _____ now Viscont of Stormont upon production of the Rights called for in the first Decreet And in this Reduction The Lords did suffer and admit the said Viscount to insist in the said first Reduction he produceing the said David Viscount of Stormont his Right and instructing that he represents him Though the said first Process was not transferred in the Person of the said Viscount active and against the Pursuers of this Reduction passive and the summonds of Reduction whereupon the first Decreet proceeded was not produced Which The Lords allowed to be supplyed by production of the Decreet and a paper containing such reasons of Reduction as Stormont thought fit to give in And that in respect it was the fault of the Defenders in the first Reduction that the Writs were not then produced And they and these having Right from them being reponed it was just that Stormont and his Heirs should be likewise reponed D. 8. McLeod contra Young 19. Decemb. 1665. WAlter Young Harie Hope and _____ having Written to the Lord McDonald that they had commissionated _____ Donaldson to buy Cows for their use and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them and the said Donaldson having drawn a Bill upon the saids Persons and any of them Found that in respect they were partners and socii as to the bargain and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson they ought to be lyable in solidum conjunctly and severaly D. 9. Dickson contra Sandilands 21. Decemb. 1665. IN the case betwixt _____ Dickson of Killoch and Sandilands his Mother and her present Husband It was Found that a Husband being obliged by Contract of Marriage to provide the liferent of such Lands as he should acquire during the Marriage to his Wife in liferent and to the Heirs of the Marriage and his Heir being pursued for implement and for resigning certain Lands acquired by the Husband for a liferent to the Relict The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband for making the said purchass as to the Annualrent of the said Debt during the Relicts Lifetime The Lords considered that though in order to other ends and effects and in special to determine the Succession in favours of an Heir of conquest whatever Lands are acquired by any person titulo singulari are esteemed Conquest yet in Contracts of Marriage such obligements anent conquest are to be understood of what is acquired by the Husband with his own means and Moneys seing what is acquired otherwayes the Price or a part of it being borrowed and the Husband being Debitor for the same upon the matter and in effect is not conquest and a free accession to the Husbands Estate in so far as the Price is a burden upon the Husbands Estate and as the Husband if he had been charged himself might have satisfied the obligement by giving an Infeftment with the foresaid burden so the Heir may do the same D. 10. Lepar contra Burnet 23. Decemb. 1665. IN the case betwixt Lepar and Dam Rachel Burnet and the Laird of Prestoun her present Husband these questions were agitated and decided 1. If a Husband get in Tocher with his Wife being an Heretrix more than an ordinary and competent Tocher which he might have gotten with another The Husband and his Heirs will be lyable after the Marriage is dissolved by the Wifes decease in quantum lucratus est for the Wifes Debt And the lucrum will be considered to be the benefit he has gotten above an ordinary Tocher 2. The Lords inclined to think That though a decreet of registration was obtained against the Wife and her Husband for his interest The Husband will not be lyable the Marriage and his interest ceasing And that an ordinary Tocher being ad sustinenda onera is not lucrum 3. Heirs portioners are lyable for their own part reserving action in case any of them become irresponsal and if the Creditor having done diligence cannot recover their parts he may have recourse against the rest 4. It was moved but not decided whether the others being non solvent The responsal Heir should be lyable for their proportion in solidum Or only for What he has gotten of the defuncts Estate D. 11. Bryand contra Grhame 3. January 1666. IN the case betwixt Mr Andrew Bryand and George Grhame The said George being constitute assigney to a
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
he cannot make voluntar payment in prejudice of a Creditor who has done Diligence Gibson Clerk D. 175. Kilbirny contra Cuninghame 24. July 1673. IN an Adjudication upon the late Act of Parliament The Lords modified the price to be 18. years purchase as to the certain and constant Rent and 9. years as to casual Rent of Coal Gibson Clerk D. 176. Murray contra The Tutor of Stormount 25. July 1673. BY a Contract of Wadset the Wadsetter being lyable to compt for the excrescence of the Duties more than should satisfie the Annualrent The Lords in a Process for Maills and Duties Found the Exception Relevant that the Pursuer was satisfied of the Sum upon the Wadset by his Intromission without Declarator D. 177. Ker contra Ruthven eod die THE Lords Found That the Estate of the Earl of Bramford being settled upon the Lord Forresters Son by Act of Parliament he could not have it but cum sua causa and the burden of his Debts Item They Found That the Earl having entertained his Grand-child the Pursuer was to be presumed to have done it ex pietate avita the Earl being a generous person and having an opulent Estate and his Grand-child having nothing for the time but the Debt in question whereof the Annualrent was provided and belonged to his Brother Monro Clerk D. 178. Creditors of Hugh Sinclair contra Annandale 26. July 1673. THE Lords Found That a Compryser upon Debts anterior to the Debitor's Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat Mr. Thomas Hay Clerk D. 179. Mr. John Bayn contra Caivie eod die THE Lords Found That a Tack being questioned as antedated to obviate an Inhibition was suspect being rased in the Date So that the same seemed to be vitiate and an other year superinduced And therefore was not a valide and probative Writ in prejudice of the Inhibition unless it could be adminiculate by some Adminicle before the Inhibition Mr. Thomas Hay Clerk D. 180. 2. June 1674. THE Kings Majesty having by two Letters to the Lords of Session presented Mr. David Balfour of Forret and Mr. Thomas Murray both Advocates to be Lords of the Session It was moved by one of the Lords that seing by the Law and Acts of Parliament these who are to be admitted to be Lords of Session should be tryed Therefore the Tryal should be such as is intended by the Law the very Notion of Tryal importing at least a serious if not a strict and exact way of Tryal This was moved because the way of Tryal had become of late so perfunctorious and dicis causa that it was ridiculous and in effect a Mock-Tryal Some of the Lords being appointed to examine these who were named by the King and after they had asked some trivial Questions having made Report That they found them qualified albeit it was not only known to the Examinators but to all the Lords and notour to the World that they were altogether Ignorant both of Law and Practique and did acknowledge it themselves not dareing to expose themselves to sit in the Outer house as Ordinaries they prevailing with others of the Lords to go out and officiate for them as Curats 1. It was urged that the Estates had considered the Interest of the Kingdom all Estates being concerned in that Judicatory that the Lords should be Persons of great Abilitie and Integrity seing their Lands and Fortunes and greatest Interests are the Subject of their Jurisdiction and Decisions and therefore it was provided by diverse Statutes and Acts of Parliament they should be qualified Persons and found upon Tryal to be such 2. His Majesties Letter required that the Persons now named should be examined effectually 3. By diverse Acts of Sederunt and in special one upon the Kings Letter for the time the way of Tryal is prescribed which is most exact 4. The Oath of Admission that the Lords should be faithful has and ought to have Influence upon all their Actions as Lords of the Session that they should be done faithfully and the Tryal of Lords for the Reasons foresaid being an important Act of Duty ought to be done faithfully and sincerely and cannot be done otherways without breach of Oath 5. To pretend to obey the Law and the Kings Letter which requireth an effectual Tryal in a way which is superficiary and evidently ineffectual it is a Cheat and Circumventio Legis which in others is hateful but in Judges who are Antistites Juris is abominable and inconsistent with the Honour and Integrity that should be expected from the Judicatory 6. If there were no Tryal at all the Lords would be passive if Persons not qualified should be named but being enjoyned to try effectually if they receive them without an effectual tryal they are not free of blame and are accomptable to God and his Majesty and to the Parliament To all these Reasons It was Answered That at this time the way of Tryal that had been for a long time should be continued at this time and that the Motion was upon some design The Mover did purge himself upon Oath that he had no Design but to do duty and did attest the President that before this occasion they had spoken often to that purpose and did represent that this is the fit time to put the Law and Statutes in execution The Persons named being Advocats and Persons presumed to be able to undergo the Tryal so that it cannot be thought that there is any thing of Design against their Persons That it cannot be denyed but the late way is abusive and antiquitas erroris or abusus cannot be thought and pleaded to be custom That in the Year 1629. the Lords by an Act of Sederunt had renewed and ratified all the former Statutes anent the Tryal and Admission of the Lords and ordained them to be observed That since that time the Troubles interveened and continued long so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour It was Carryed That the Examination should be as it has been of late and upon the Report of Gosford and Craigie appointed to examine them they were admitted Gosford was of Opinion that there should be another way of Tryal D. 181. Bogie contra The Executors of the Lady Oxenford 4. June 1674. THE Executors of the Lady Oxenford being pursued at the instance of a Legatar did in the Compt before the Auditor give in an Article of Discharge viz. That the Expences of a Process at the Executors instance should be allowed It was Answered That if the Executor had not pursued that Process there was as much free Gear as would have satisfied the Legacie and the Executor had not prevailed and if they had prevailed the benefit would only have accresced to the Executor and not to the Legatars and therefore penes quem emolumentum c. and seing they would have had no benefite they should have no
of Parliament their Sallary being enlarged and settled upon them otherwayes And if during the time the said Lords had their Sentence Silver any of them had deceased before Sentence tho the Process had been commenced and advanced beyond Litiscontestation it cannot be said that the Executors of a Lord deceasing before the Sentence could claim any part of the Sentence Money where the Sentence is pronounced after his decease 3. By the 28. Act of his Majesties Parl. 1661. the Quots of Testaments are discharged and yet the Bishops being restored to the Right of Quots the same will be due for any Testament confirmed thereafter notwithstanding of the said Act of Parliament whereas if Quots were due from the time they became confirmable they could not be claimed tho confirmed since the Bishops were restored as said is to their Quots as being discharged by the said Act of Parliament The Lords did also Find That the Bishops Relict and nearest of Kin had Right to an Ann even before the late Act of Parliament being the 13. Act of the 3. Session of His Majesties second Parliament concerning the Ann due to the Executors of Bishops and Ministers In respect by a Letter of His Majesties Grand-father in anno 1613. and Act of the Bishops thereupon an Ann was Found to be due to the nearest of Kin of Bishops But in regard by the said Letter and Custom before the said late Act of Parliament the Ann in relation to Bishops was if the Bishop deceased before Michaelmass after the Moneth of _____ his Executors had the half of that year as belonging to the Bishops Incumbent Jure proprio and the half of the next year as Ann the half of the Rent of his Benefice for the half year preceeding Michaelmass the other half being due to him as Incumbent and fallen under his Executry Whereas by the late Act the said Ann is so ordered that the Bishop or Minister surviveing White-sunday the half of that year does belong to him and his Executors upon account of his Incumbency and the other half for the Ann And the Incumbent surviving Michaelmass he is to have the whole Year as Incumbent and the half of the next year is to be Ann Therefore the Lords Found That the late Bishop having deceased before Michaelmass and before the said late Act of Parliament the Ann should be as it was formerly In the same Process It was debated among the Lords more fully than at the Bar whether the Quots of Testaments should fall under the Ann And it was urged by some that the Quots of Testaments are but casual Obventions and that they are due as said is upon the account foresaid viz. That Testaments are confirmed by the Bishop or his Officials and ratione operae and as Sentence-Silver so that they cannot be due but to the present Incumbent who does a duty and that Compositions for entering of Vasals and Liferent Escheats and Non-entrys and such like casualities do not fall under Ann. Whereunto It was Answered That by the Kings Letter by the Act of Parliament and by the Canon Law the half of the Rent of the Benefice Stipend and Living fall under the Ann and the Quots of Testaments are a considerable part of the Bishops Rent especially in Edinburgh and undoubtedly is a part of his Living and Benefice And the Rent of Milns which is casual and depends where there is no astriction upon the arbitrary will of Parties to come or not to come to the same and is likewayes due ratione operae doth fall under Ann As also the Rent of Fishings and such like which are casual And there is a great difference betwixt Quots which is an ordinary yearly Rent and cannot fail so but there will be still Testaments confirmed and the casualities of Superiority as Liferents c. which are so uncertain as that it cannot be said they are the Bishops Living And the Argument that Quots are due ratione operae and by reason of actual confirmation which cannot be due by the Executors or Relict is of no weight seing the other constant Rent of Stipends and Benefices is due ratione operae and because the Bishop or Minister serveth which is not prestable by Executors or Relicts The Lords notwithstanding enclined to Find That the Quots do not fall under the Ann but upon the motion of some of their Number that the Interloquitor being to be a preparative should be further considered they thought fit not to proceed to the Voting Gibson Clerk Forret Reporter D. 195. Craig contra Edger 20. Novemb. 1674. THE Lords Found That a Bond bearing Annualrent being Assigned by a Woman to her former Husband by her Contract of Marriage and the Assignation not being intimate a Retrocession did settle again the Right of the said Bond in the Person of the Wife Quia unumquodque dissolvitur eo modo quo contrahitur And the said Bond being thereafter assigned in favours of the second Husband he and his Executors had Right to the same and that it was not in bonis of the first Husband though the Retrocession was not intimate until after his decease Lord Glendoick Reporter Mr. John Hay Clerk D. 196. Thoirs contra Tolquhon eod die MR. David Thoirs in an Improbation at his Instance against Tolquhon of a Bond did crave Certification because the Principal was not produced but an Extract out of the Commissars Books of Aberdeen The Lords upon a Report having debated amongst themselves what was fit to be done in the said Case seing it appeared that the said Pursuite was intented not of design to question the Bond upon evident and probable Grounds of Falsehood but only to have it produced and it appeared by many Presumptions that the Bond was a true Deed and never questioned by the granter ex capite falsi tho he had suspended upon other Reasons And there had been much diligence by Decreets Horning and Comprysing upon the same and yet the Bond being of an ancient Date beyond 40 years there was no person living that could prove the Tenor thereof and declare that they knew the same to be a true Deed And on the other part the Lords could not refuse to grant Certification seing an Extract does not satisfy in an Improbation where the Principal was not produced It was moved by some of the Lords That if the Pursuite was not intented within the years of Prescription that it should not be sustained seing albeit causa falsi doth not prescrive where the Paper or Subject craved to be improven is produced and the Pursuer offers to improve and make it appear that the same is false yet when the Improbation is only to try the condition of the Defenders Right and in order to a Certification if the Principal cannot be exhibit it is not properly causa falsi And the effect of the Certification is only that the Write for not production should be holden as false praesumptive and fictione Juris And upon the matter it
is but a Reduction for not Production The said Point being of great Concernment and the Debate being upon a Bill and the Process not produced that it might appear whether it was intented within the 40 years or not it was not decided D. 197. Cranston contra Brown 21. Novemb. 1674. A Testator having left by Testament a Sum of Money due upon an Heretable Surety and having named his Sister as Executor and universal Legator she was pursued for payment of the said Legacy at the least that being likeways Heir she should denude her self of the Right of the said Sum. It was Alledged for her That the Subject being Heretable the Defunct could not bequeath the same in Testament It was Replyed That when res aliena is left in Legacy the Executor in Law tenetur luere and ought to redeem the same or pay the value and multo magis in this case the Testator having in effect left res sua though upon the matter res aliena as to the power of disposing of the same on Death-bed or by Testament And therefore the Executrix if she be Heir as she is in this Case ought to give the same and if she were not Heir ought to redeem the same as said is The Lords upon the debate amongst themselves considered that in Law legatum rei alienae is effectual if the Testator sciebat rem alienam whereas si nesciebat it is to be persumed he would not have left that which was not his own and tho the Testator upon mistake was ignorant that it was res aliena yet if the Legator was of so near Relation that it was probable he should have left the legacie at least the value if he had knowen it was res aliena the Legacy was effectual And that in the case in question the Legator was the Defuncts Nevoy by his Brother and the Sum that was left was his own tho Heretable as said is and the Testator either knew that he could not dispose of the same being Heretable and was presumed and obliged to know the Law and if he was ignorant in point of Law ignorantia Juris nocet and therefore the Lords inclined to sustain the Legacy But one of their Number having desired that the Decision might be delayed while the next day that he might have his thoughts upon the Case the same was delayed Strathurd Reporter Mr. John Hay Clerk D. 198. Pilton contra the Creditors of the Lord Sinclair 30. November 1674. THE deceast Lord Sinclair having maryed his Daughter with John Sinclair younger of Hermiston did dispone to him his Estate with the Burden of his own proper Debts mentioned in the Right and took a Bond for an Annuity of 8000 merks first in the name of John Watt and thereafter the said Bond being given back he did take another Bond for the said Annuity during his Lifetime in the Name of George Cockburn of Pilton Whereupon the said George did diligence by Comprysing and otherways against the said John Sinclair of Herdmanston and did also take the said John Sinclair's Liferent Escheat And upon the Grounds foresaid and a Suspension of double Poinding against him diverse Creditors of the Lord Sinclair did question Pilton's Interest upon the foresaid Bond as being fraudulent and a contrivance to frustrate Creditors and to secure so considerable an Interest for the use of the Debitor contrare to the Act of Parliament 1621. The Lords notwithstanding preferred the said George Cockburn as having Right to the Duties of Herdmanston's Estate by vertue of the said Gift of Escheat reserving to the Creditors their Declarator of Trust or Reduction upon the said Act of Parliament And accordingly the whole Estate of Herdmanston being set in Tack thereafter the Tack-duty is payable to Pilton and the other Creditors in order conform to the said Decreet The Tacks-men being charged at the instance of Pilton Did Suspend upon double poinding pretending they were troubled by other Creditors of the Lord Sinclair And the said Creditors compearing did alledge that they ought to be preferred to Pilton in respect his interest ab initio by the said Bond for the Annuity foresaid of 8000 Merks was a fraudulent contrivance in prejudice of the Lord Sinclair's Creditors that the foresaid Annuity might be secured to him in the Person of Pilton his Friend and Relation and thereupon might live plentifully his Creditors being defrauded and suffering in the mean time And that the Gift of Escheat of Herdmanstons's Liferent being granted intuitu and upon account of the said interest laborat eodem vitio and was in effect to the behoof of the Lord Sinclair It was Answered for Pilton That tho the said Bond was granted to him without an Onerous Cause yet intuitu of the same and thinking that he was thereby secured he had bona fide alimented my Lord Sinclair and had payed to himself and had engaged to others for him to pay diverse Sums of Money before any interruption made by the Creditors So that before any Diligence done by them his Right became Onerous and the Gift of Escheat of Herdmanston's Estate was taken by him to secure himself as to his relief And that the King and Exchequer did and might give the said Gift to him upon the consideration foresaid and thereupon in the former Decreet of multiple poinding he was preferred to all other Creditors And that his Majesty had also gifted the Liferent Escheat of the said Lord Sinclair to Mr. George Gibson upon a Back-bond that thereby he and the other Creditors thereinmentioned being satisfied the superplus and benefite of the said Escheat should be applyed for the Aliment of the said Lord Sinclair And therefore tho Pilton should not have Right as he had to the said Tack-duty the foresaid Annuity and Gift of Escheat of Herdmanston's Liferent would accrue to Mr. George Gibson Donator to the uses foresaid and fall under his Gift It was Answered for the Creditors That they were content the Lords should modify an Aliment for the Lord Sinclair And that Pilton's interest should be sustained effeirand thereto the Superplus being applyed as it ought to be for their satisfaction The Lords for the most part enclined to Find that George Cockburn's Right to the said Annuity was Onerous In sua far as he could instruct that he had payed to or for the use of my Lord Sinclair any Sums of Money before the Creditors Diligence Yet some were of the opinion That the Laird of Hermanston having Married my Lord Sinclair's Daughter and having given the said Bond for the Annuity dureing my Lord Sinclair's Lifetime was a down-right contrivance contrare to the Act of Parliament 1621. to the end that the Right to the said Annuity which if it had been taken in the person of my Lord Sinclair himself would have been lyable to his Creditors might be so conveyed in the person of another that it should not be lyable to the said Lord Sinclair's Debts and being ab initio fraudulent it
contra Montgomerie 29. June 1675. A Pursute for making up the Tenor of a Comprising was sustained in respect the Adminicles were most pregnant and in special the Executiones were yet extant and entire Monro Clerk _____ It is thought that much Cautione and tenderness should be used in Processes of the Nature forsaid for proving the Tenor of Compriseings seing Compriseings are to be considered either as Decreets or as Executions and in effect they are both upon the matter In respect the Messenger Decerns and Adjudges and Dispones the Lands and others comprised and therefore the same ought to be subscribed both by the Messenger who in subsidium doth that which the Partie ought to do and doth dispone his Estate in satisfaction of his Debt and by the Clerk of the Compriseing as a Decreet and the Tenor of Decreets cannot be proven but by Extracts And a Comprysing being as said is Processus executivus and ultimate execution it ought not to be proven but per relationem Nuncij and execution under the Messengers hands And it were hard that executiones should be made up by witnesses and probation of the Tenor Seing there may be a nullity in the same if they were extant And tho witnesses may remember they had seen executions they can hardly remember upon the precise tenor of all the words of the same And if the tenor of the executions might be made up there should be no security Seing Prescription which is the greatest Security of the People may be evacuated upon pretence that there was an interruption by the execution of a Summonds but that the same being lost is made up by proving the Tenor and by an Act of Parliment K. Jam. 6. Par. 6. cap. 94. It s Ordained That the Tenor of Letters of Horning and Executions thereof is not probable by Witnesses And there is parity if not more Reason as to Comprisings whereby the greatest Estates may be taken away by a Decreet for proving the Tenor. D. 284. Hall contra Murray 30. June 1675. ARrestment being upon a Decreet and the said Decreet being thereafter turned in a Lybel The Lords Found That the Decreet ceased to be a Sentence and the Arrestment thereupon is now of the nature of an Arrestment upon a Dependence and may be loosed Gibson Clerk D. 285. Dunmure contra Lutfoot eod die THE Lords in an Improbation Found as they had done formerly in diverse Cases That an Extract out of the Books of an Inferior Court does not satisfie the Production the question being of a Write registrate in the Books of the Canongate Newbyth Reporter D. 286. Stewart contra Riddoch eod die JAmes Stewart of Aberlednoch having obtained a Decreet Cognitions Causae against John Riddoch for implement of a Disposition granted by David Riddoch his Grand-father and thereupon having also obtained a Decreet of Adjudication the same was stopt upon a Bill given in by _____ Campbel of Tarririck pretending that he had a Right to a Contract of Mariage betwixt Alexander Riddoch and his wife as assigney constitute by the said Mr. Alexander in whose favours the Granter of the Disposition to Stewart was obliged by the said Contract to dispone to him the same Lands And the Assignation granted by the said Alexander Riddoch to the said Campbel being questioned as false The Lords thought fit to hear both Parties on their several Adjudications reserving Improbation of the said Assignation and with this Declaration that if the said Assignation should be improven the Decreet and Adjudication upon the same should fall Because there was a Competition in Diligence The Lords did wave the Debates in the Improbation being most as to that Point who should abide by the said Assignation as true seing the Assigney Campbel declared that his Name was filled up in the same without his Knowledge and was not concerned to abide by the same and Mr. John Drummond of Megginsh compearing as having a compleat Warrand and Commission from the said Mr. Alexander Riddoch who was in Barbadoes to prosecute the said Action which had been intented in Campbel's Name offered to abide by the said Assignation only as a Factor Some of the Lords thought that a Write being questioned as false there should be some person to abide by the same upon their hazard simply and not with such qualities seing the consequence and hazard of persons that abide by Writes questioned upon falsehood if the same should be improven is the great bulwark and security of the people against falsehood which doth encrease daily But this point was not decided D. 287. Clerk contra Steuart eod die A Husband by his Contract of Marriage having got the Right of the Fie of a Tenement of Land settled upon him his Wife having resigned the same for Infeftment to him and her and the Heirs of the Marriage whilks failÈiening his Heirs He and his Wife did thereafter enter in a Contract with another Sister of his Wifes who had Right to the equal half of the said Tenement as Heir portioner with her Sister by which Contract there was a mutual TailÈie with consent of the Husband and the Right of Fie that by the former Contract was settled upon her Husband as said is was disponed to the Wife in sua far as both the Sisters with consent of their Husbands were obliged to resign their Respective parts in favours of their Husbands and themselves in Liferent and the Heirs of the Marriage in Fie whilks FailÈieing in favours of the Wifes Heirs Which Contract was questioned by a Reduction at the instance of a Creditor of the Husbands upon that reason that the said Right of Fie granted by the said Contract betwixt the Husband and the Wife and her Sister was in defraud of the Husbands Creditors and null by the Act of Parliament 1621. In sua far as the Husband had a Fie of the said Tenement by the Contract of Marriage betwixt him and his Wife which might have been affected with Execution at the instance of his Creditors and the said Fie was given by the said late Contract to the Wife so that the Husband had only a Liferent In this Process It was Alledged 1. That the Act of Parliament did militate only in the case of Dyvors and Dispositions granted by them And 2. That the said Act of Parliament doth only rescind Alienations that are made without true just and necessary Causes and that the said Contract betwixt the Husband and his Wife and her Sister was made for a true and just Cause and the Fie of the said Tenement which the Debitor had was given away in respect of the Obligements of the said Contract in favours of the Husband the Pursuers Debitor which was as equal as to advantages for the Pursuers Debitor as they were for the other party seing both the Sisters their parts of the Tenement were provided in the same manner to the Respective Wives and their Husbands and the Heirs of the Marriage whilks failÈiening the Wifes Heirs
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
might question But the Lords Found That if the said Deed was on Death-bed the Defunct having not only granted an Heretable Right but having obliged himself his Heirs and Executors to pay the said Sum his Executry and Deads part would be lyable to the said Obligement even as to Moveables acquired dureing the first Marriage which may appear not to be without difficulty seing as to the Conquest during the first Marriage there could be no Deads-part the same being provided to the Children of the first Marriage as said is Tho the Heir of the Marriage may renounce to be General Heir and may take a course to establish the Conquest either in his own or in the person of an Assigney to his behoof and so not be lyable to the Defuncts Obligement without an Onerous Cause Yet it is to be considered whether if they should be served Heirs of the Marriage they would be lyable to the same seing all Heirs represent the Defunct suo ordine and are eadem perâ—ona Or if they be lyable only to the Defuncts Deeds and Obligements for Onerous Causes Item If such Provisions be not in favours of the Heirs of the Marriage but only of Bairns Whether the Bairns will be lyable to the Defuncts Debts And if all the Bairns will be lyable to the same as Heirs of Provision It is thought If Infeftment follow in favours of the Father and the Bairns of the Marriage they must be Heirs of provision to him and that all the Bairns if it be not otherways provided will be Heirs of Provision But these Points did not fall under debate Actores Cuningham alteri Dalâ—ymple Hamilton Clerk In praesentia D. 360. Galbraith contra Lesly eod die THE Lords Found That a Bond being granted by two Persons conjunctly and severally being Merchants and for the price of Merchant Ware the same could not be questioned upon that pretence that one of them was Minor the time of the granting the same It being offered to be proâ—en that he was then and is since a Trafficquing Merchant Monro Clerk Sir David Falconer having reported the same in Order to his Tryal when he was to be admitted a Lord of the Session D. 361. Irving contra Irving 22. June 1676. ALexander Irving of Lenturk raised Suspension and Reduction against John Ross in Strathmore and Francis Irving Brother to Drum of a Decreet of SpuilÈie and wrongous Intromission upon these Grounds that the Witnesses had declared falsely In swa far as being adduced by the Pursuer before the Council they had declared they knew nothing and in the Process before the Lords they declared fully and positively as to all that was Libelled And 2. They declared upon Quantities so exorbitant that the same do amount to the twentieth Corn Whereas in the Countrey where the Cornes grew they have scarce the third Corne. The Lords Found That the Decreet being in foro could not be questioned upon any Ground and in special upon the Testimonies of the Witnesses as false seing there should be no end nor period of Pleas and there being no Protestation for Reprobatores Some of the Lords were of Opinion that as a Decreet founded upon a false Write may be questioned so when the same is founded upon false Testimonies and the falsehood is evident and may be qualified sine altiore indagine the same may be likeways questioned And the Remedy of a Reduction of Decreets in foro being denyed only upon that pretence of Competent and Omitted ought not to be denyed in such cases seing the Ground foresaid that the Testimonies were false doth arise upon the Depositions of the Witnesses and was neither known nor competent to the Defender who is not allowed to see nor to question dicta testium And a remedie which in Law and Reason ought to be allowed is not taken away because it is not protested for by a Party who for the time did not know that there were any Ground for the same Newbyth Reporter Gibson Clerk D. 362. _____ contra Sheil eod die A Comprysing being deduced at the Instance of an Assigney against the Representative of the Debitor as lawfully charged and the Compriser upon his Infeftment having intented a pursute for Mails and Duties It was Alledged That the Cedent was debitor to the Defunct so that the Debt due to the Defunct did compense the Debt due by him and the Ground of the Comprysing being satisfied the Comprysing is extinguished Which case being Reported to the Lords they had these Points in debate and consideration amongst themselves viz. 1. That Compensation is only of personal Debts and of Sums of Money de liquido in liquidum but is not receivable in the case of Real Rights and Lands and Pursutes upon the same Seing in such processes there is no Debt craved but the pursute is founded upon a Real Right And some of the Lords being enclined to think that the Alledgance is not founded upon Compensation but upon Payment or the Equivalent viz. That the Cedent habebat intus and in effect and upon the matter was satisfied being Debitor in alse much as was due to him by the Defunct And the Lords are in use to favour Debitors whose Lands are Comprised and in order to extinguish Comprisings to sustain process for Compt and Reckoning and declaring the same to be extinct not only by Intromission but by Compensation Others were of the Opinion that tho Compensation ipso jure minuit tollit obligationem where it is proponed yet if the same be not proponed before the Decreet whereupon the Comprysing proceeds and when both Debts are in finibus of a personal Obligement the Debt contained in the Comprysing cannot be said to have been payed before the Comprysing and after the Comprysing is deduced it cannot be extinguished but either by Intromission within the Years of the Legal or by Redemption 2. Whatever may be pretended as to the Cedent that he could not be in bona fide to compryse for a Debt due to him having alse much in his hand as would satisfy the same yet such pretences are not competent against the Third Person having bona fide comprysed or having Jus quaesitum As in the case of a Horning upon a Decreet it could not be obtruded to the Donator that the Debt was satisfied The Obtainer of the Decreet being Debitor to the Defender And if this should be sustained expired Comprysings and Infeftments thereupon being now a most ordinary surety may be easily subverted upon pretence that the Cedent was Debitor in Sums equivalent to the person against whom the Comprysing is deduced And there is a great difference betwixt payment and satisfaction either by actual payment of the Debt or by Intromission with the Maills and Duties of the Lands comprysed which is obvious and easie to be known and betwixt the pretence of satisfaction by Compensation seing payment is exceptio in rem and extinguisheth Debts as to all effects and Intromission is so notour that
Back-bonds which upon the matter are Translations whereas a Singular Successor has none 7. That such Back-bonds should affect Comprysings not only before but after Infeftment during the Legal But thereafter should cease to qualify the same It seems to be inconsistent with and against the principles of Law In praesentia D. 375. _____ contra _____ eod die THE Lords Found That a Bishop and Executors had Right only to the Quots of such Testaments as were confirmed in the Bishops time in his own Right as Bishop for the time And the said Quots being in effect Sentence-Silver dies cedit by the Confirmation so that whosoever is Bishop then has Right to the same They Found likewayes That Quots being a part of the Bishops Patrimony and Rent The Quots of all Testaments confirmed within the half Year after the Bishops decease did fall under the Ann and belong to the Bishops Relict and Executors Vide Carpzovium lib. 1. Jurisp Consistorialis de Salario defuncti Pastoris semestri D. 376. Spence contra Scot 7. July 1676. IN a pursute for payment of a Sum of Money It was Alledged That the Pursuers Cedent was Tutor to the Defender and had not made his Accompt Which Defence the Lords sustained against the Assigney But it was their meaning that the Pursuer should not be delayed and and that a competent time should be given to the Defender to pursue and discuss his Tutor Glendoich Reporter Mr. John Hay Clerk D. 377. Johnstoun contra Rome 8. July 1676. IN a pursute upon the passive Title of Successor Titulo Lucrativo In swa far as the Defender had a Disposition from his Father without an Onerous Cause The Lords sustained the pursute albeit it was Alledged by the Defender he had made no use of the said Disposition and was content to renounce the same which the Lords Found he could not do being delivered to him A Concluded Cause Advised Mr. Thomas Hay Clerk D. 378. Finlaw contra Litle 11. July 1676. A Legacy being left in these Terms viz. That it should be payed out of the Testatrix her Household Plenishing and Debts due upon Compts The Lords Found That albeit the said plenishing and Debts should not extend to satisfy the said Legacy that it was not a limited Legacy but ought to be satisfied out of the other Executry and that the saids words were only executiva as to the order and way of Payment in the first place and Interpretatio should be ut actus valeat especially seing the Legator was the Defuncts Relation And it is to be presumed that the foresaid qualification was only as to the way of payment In respect the Defunct did look upon her Plenishing and Debts foresaid as sufficient to pay the same And did not declare that the said Legacy should be only payed out of the same and in case it should be short that she should have no more And it appeared to the Lords that the Executors had given up a very inconsiderable Inventar of the plenishing and far short of what a person of the Defuncts condition and profession being a great Innkeeper behoved to have in order to her Calling Actores Dalrymple c. alteri Hog in praesentia D. 379. Bishop of Dumblain contra Kinloch of Gilmertoun eod die IN Anno 1620. His Majesties Grand-Father did Annex the Deanry of the Chappel Royal to the Bishoprick of Dumblain And did mortify thereto an Annualrent of Ten Chalders of Victual out of the Lands of Markle and Traprane By vertue of which Right the Bishops of Dumblane have eversince possest the said Annualrent until 1638. that the Bishops were supprest And thereafter Mr. Alexander Henderson and Mr. Robert Blair being provided thereto as his Majesties Chaplaines did continue in the possession of the same till the Bishops were Restored in 1661. and since the Bishop of Dumblane was in possession of the same But Francis Kinloch now Heretor tho he had been in use of payment of 8. Chalders of Victual as a part of the said Annuity out of his Lands since he acquired a Right to the same being charged at the instance of the said Bishop did Suspend upon that Reason viz. That the said Annualrent was Wadset by the Earl of Bothwel in the Year 1587. to Mr. Thomas Craig for 7000 Merks And John Murray Earl of Annandale having acquired the Right of the said Annualrent and having resigned the same in savours of K. Ja. to the effect it might be Mortified as said is The King by the said Mortification could give no other Right than what flowed from the said persons his Authors which was redeemable as said is and de facto the said Right was Redeemed In sua far as the Right of Reversion of the said Annualrent having come in the person of the Duke of Lennox Donator to the Forefaulture of the Earl of Bothwell and from him to the Earl of Balcleugh and from the late Earl of Balcleugh to Sir John Scot of Seatoun Caetera desunt D. 380. Jaffray contra Murray 8. November 1676. A Party being pursued upon the passive Titles and in special upon that of Charged to enter Heir and having offered to Renounce It was Replyed that he could not Seing Res was not integra In Respect he had granted a Bond Of purpose that thereupon the Estate might be Adjudged The Lords Found That albeit he had not granted the Bond upon the designe foresaid yet the Estate being adjudged and incumbered by his Deed he ought to be Lyable to the Defuncts Creditors pro tanto Or to purge Gibson Clerk It is Thought That if the Appeirand Heir should dolose grant a Bond that the Defuncts Estate might be thereupon adjudged ought to be Lyable in solidum But if he grant a Bond which is a lawful Deed and thereupon his Creditor adjudge which he could not hinder It is hard to sustaine a passive Title against him unless his creditor having adjudged were satisfied by that course In which case seing the Defuncts creditors are prejudged It is Reason he should be Lyable pro tanto D. 381. Steuart contra Hay 9. November 1676. LAnds being bought after Interdiction A Reduction of the said Interdiction was pursued at the instance of the Buyer upon these Reasons 1. That Interdictions by the Common Law are only of prodigi And Interdictors are in effect given Curatores to them And by our custom albeit Interdictions are granted sine causae Cognitione upon Bonds granted by persons interdicted upon that consideration and narrative that they are persons facile and not fit to manage their Estate whereupon the Judge presumes that they are such and upon a Bill gives warrand to publish the same yet the Interdiction in question ought not to be sustained seing it is not the ordinary stile of other Interdictions and the Bond of Interdiction bears no narrative of Facility but only that the Granter for the standing of his Family being very Ancient did oblige himself not to Dispone his Estate
without consent of the Persons thereinmentioned and Letters of Publication were not raised thereupon but Inhibition was only used 2. That Interdictions are a Remedy for secureing weak persons and ought not to be a snare to others And the Law favours and helps these that are decepti and not decipientes And that the Pursuer was in effect circumveened in swa far as the said Interdiction was not Registrate till the Pursuer was in Terms of Bargaining and they had searched the Registers and had not found any such Interdiction and the only Interdictor on Life was Witness to the Bargain and got a part of the price and the rest of the price was payed to Creditors anterior to the Interdiction And the Pursuer relying upon the Ingenuity of the Disponer tho he might have secured himself by taking a Right to the said Debts did extinguish the same by taking Discharges and Renounciatons The Lords being divided in their Opinions The case was not decided this day _____ Hay Clerk In praesentia D. 382. Inter eosdem 10. November 1676. THE Lords sustained the Interdiction abovementioned the Defenders offering to prove that the Person Interdicted was not rei suae providus And Found That the person interdicted was thereby in the condition of Minors And that he and his Heirs could not question any Disposition or other Deed done by him upon the naked head of Interdiction unless they alledge and qualify Lesion And that the Pursuer of the Reduction may prove that the Bargain was profitably made and that the pryce was in rem versum And the Lords declared they would not be nice as to Probation but Reserved the consideration of it to themselves It was further Replyed That the Interdiction is Null being Execute by a person that was not a Messenger being deprived which was Repelled In respect of the Answer that it was offered to be proven that notwithstanding of the Sentence of Deprivation he was holden and tentus reputatus to be a Messenger Notwithstanding it was Triplyed that the Pursuer in Fortification of the Sentence of Deprivation and his own Deposition offered to prove that it was the common Opinion of the Country that the Executor was not a Messenger then being deprived Which was thought hard by some of the Lords being of the Opinion that at least habitus and tentus opinio ought to have been allowed to both Parties to prove Reserving to the Lords to Consider the Probation and to Judge according to that which should be Found most pregnant D. 383. Paterson contra Johnstoun eod die IT was desired by a Bill That a party against whom Witnesses had been used and who had declared might be allowed to qualify the Inhability of the Witnesses and that a Terme should be Assigned to that purpose Whereupon it was Agitate among the Lords If a Reprobator should be sustained by way of exception whereupon there would be a new Litiscontestation And it was urged by some of the Lords that if the Inhability of the Witnesses should be qualified upon the ordinary Grounds whereupon the Witnesses themselves are interrogate viz. That they are not worth the Kings unlaw and such like That Reprobator ought not to be sustained Especially the Party being heard to object against the Witnesses And yet the Lords sustained Reprobator by way of exception and without Limitation In respect the Oath of the Witnesses concerning their own Hability is only an Oath of Calumny and notwithstanding thereof a Reprobator may be pursued by way of Action And the Objections against the Witnesses may come to the Parties knowledge after they have declared And as there may be Two Litiscontestations if an exception of Falsehood or any other should arise upon the Production of the Writes there is eadem ratio as to the Witnesses seing the Objections against them could not be proponed before Litiscontestation And if they be Relevant they ought to be proven And it is the interest of both Parties that the Reprobator should be received by way of exception ne lites protelentur But the Lords Ordained a Condescendance to be given in in Write of the Grounds of the Reprobator and to be given to the other party that he might be heard to debate upon the Relevancy of the same Gibson Clerk D. 384. Inglis contra Boswell 14. Novem. 1676. A Father having granted Bonds of provision in favours of his Children being in familia and having thereafter contracted Debt It was Found That the Creditors tho posterior are preferable to the Children And tho in other cases It is presumed That Bonds or Writes being in the hands of these to whom the same are granted were delivered ab initio yet in the case of Children the Presumption lyes against them that they are still in the hands of their Parents so that they are masters of the same And eo ipso that thereafter they contract Debt they revock the said Provisions In swa far as they may prejudge their Creditors unless it be offered to be proven that they were delivered and were the Childrens Evidents the time of the contracting the said posterior Debt Newtoun Reporter Mr. John Hay Clerk D. 385. Davidson contra Wauchop 16. Novem. 1676. JOHN Wauchop one of the Macers before the Lords having taken a Right by Translation to a Bond of 700 Merks alledged granted by the deceast James Davidson Jaylor in the Canongate to _____ Horseburgh And a Reduction and Improbation being intented of the said Bond The Lords did decern in the Improbation and Found the said Bond to be false and forged and remitted _____ Dumbar Forger to the Justice Albeit the Writer and Witnesses and the Debitor and Creditor being all deceast there were no means left for improving the said Bond directly Which the Lords did In respect of the indirect Articles aftermentioned and the concurrence in great number and pregnancy of the presumptions and evidences of falsehood arising intrinsically upon the inspection of the Write and the compareing of Papers and otherwayes viz. 1. That the Debitor Davidson was a person most Responsal and the Creditor Horseburgh indigent So that the Bond being of date 1644. It could not be thought that if it had been a true Bond the Creditor or his Relict would or could have wanted payment so long nothing being done to recover payment until after 1669. That the said Bond being Assigned to _____ Laurie was transferred in favours of John Wauchop after all the means of Improbation had failed by the decease of Writer and Witnesses 2. The said _____ Laurie and John Wauchop being examined upon Oath It appears by their Declaration that the Assignation of the said Bond in favours of _____ Laurie was never delivered to him but was still retained by _____ Dumbar who had Marryed the Relict of the said Horseburgh and pretended that the said Assignation was made by Horseburgh in favours of his Wife but left Blank And that Lawries Name was filled up to the use and in behalf of the
And it was carryed by plurality that the Adjudication should be reduced Newtoun Reporter Mr. John Hay Clerk D. 388. Sheill Minister of Prestounkirk contra His Parishoners 28. November 1676. THE Lords Found That Viccarage Teinds are ruled by Custom and Local as to the Quota and Kinds and manner of payment of such Teinds as are truely Viccarage So far that in a pursute for Viccarage Teinds The Defenders Alledging that some of them had been in use of paying only some certain Kinds by the space of 20. Years The Lord Found the said Alledgance Relevant to free them of other Kinds Albeit they d d Reply that the Pursuer was in possession of the Kinds in question within the Parish some others of the Parish having been in use to pay the same And that Viccarage is nomen universitatis ut Baronia and possession of a part interrupts Prescription and is in Law Possession of the whole Newtoun Reporter D. 389. John Ker contra Jean Ker. eod die IN a pursute at the instance of a Donator It was Alledged That the Debt pursued for was Heretable quoad fiscum And it being Replyed That the Pursuer had Right thereto as Executor Creditor The Lords Found Process upon that Title tho supervenient The Testament being confirmed after the intenting of the Cause In the same Cause It was Found That a Testament being confirmed the nearest of Kin ipso momento has Jus quaesitum to that part of the Goods which belong to them and do transmit the same to their Executors and these who represent them tho the Testament was not Execute before the decease of the nearest of Kin And that the said Interest and Action being in effect a Legitima and competent to them by the Law and Act of Parliament is settled in their person and doth transmit tho the same be not recovered in their own time D. 390. Scot contra Toish eod die AN Assignation being made in Holland according to the custom there by way of Instrument under the Hand of a Notar a Tabellion having retained the Warrand in his Hands Signed by the Parties was sustained in respect of the custom and consuetudo loci Justice-Clerk Reporter D. 391. Drumellier contra E. Tweeddale 30. Novem. 1676. IT was objected against a Witness That he was Testis Domesticus being Servant to the Defender at least having been his Servant the time of the Citation Whereunto It was Answered That he was not presently his Servant and tho he was his Servant the time of the Citation he might now be a habile Witness The Reason why Servants cannot be Witnesses in behalf of their Masters ceasing in this Case viz. That their Masters might have influence upon them and that they may declare in their Favours out of fear to be put out of their Service And as to the pretence that it is presumed that the Defender put the Witness out of his Service of purpose that he might used as a Witness the same doth amount only to praesumptio hominis which cedit veritati And animus and design not being probable but by the Oath of the Party the Defender and the Witness were free to declare that he was not removed out of the Defenders Service upon the design foresaid And it was more strongly to be presumed that neither the Defender being a Person of Quality nor the Witness would perjure themselves It was farder urged That the witness was to be used upon a paper that had been produced after the intention of the Cause and for improving the Date of the same And that he was removed out of the Defenders Service befor the production of the said paper So that he could not have that prospect and design to use him as a witness and that he was removed upon the account foresaid The Lords before Answer Ordained that the Time of the production of the said paper might be tryed Redford Reporter Gibson Clerk D. 392. Grierson contra The Laird of Lagg 1. December 1676. A Superior having obtained the Gift of his own Ward did pursue his Subvassal at the instance of a Donator in Trust and to his behoof for Maills and Duties dureing the Ward And the Defender having Alledged That the Pursute was to the behoof of the Superior himself and that he or his Predecessor had Disponed to the Defender his Lands with absolute warrandice The Lords Found That the Gift of Ward being given to the Vassal did accresce to the Subvassal paying his proportion of the Composition Albeit it was urged that as the King might have given the said Gift to another he might have given it to the Vassal himself and he could not be in a worse case than another Donator And that the Subvassal knowing the nature of the Right that the Superior held Lands ward was Lyable to all Casualities arising ex natura rei to what Donator soever the same be given It was controverted amongst the Lords What should be the Ground of the Decision in point of Law And some were of the Opinion that it was upon that Ground that Jus superveniens accrescit the Lands being disponed to the Subvassal ut optima maxima But it was the Opinion of others That Jus superveniens accrescit when it is either of the Property or of any Servitude or of Casualities that had fallen before the Right granted to the Vassal but not of Casualities arising thereafter ex natura rei And therefore they thought that the Right should be found to accresce to the Vassal upon that Ground that the Relation betwixt a Superior and his Vassal and the mutual obligation fides betwixt them is such and so exuberant that the Superior should not take advantage of a Casuality fallen upon account of his own person and by his Minority And that a Right of Ward granted to the Vassal himself or to any other to his behoof is upon the matter a Discharge of the Casuality both as to himself and as to the Subvassal that is concerned in consequence Newtoun Reporter Haystoun Clerk D. 393. Home contra Scot. eod die IN a Process for Mails and Duties It was Alledged That one of the Defenders was in possession by the space of 7. Years by vertue of a Tack and had the benefite of a possessory Judgement And it being Replyed That he ought to say that he had a Tack from a person having Right And neverthess The Lords Found That is was sufficient to Alledge that he had a Tack and by vertue thereof in so long possession This Decision seemed to some of the Lords to be hard in respect a Tennent is not properly in possession but detinet to the behoof the Setter So that he could be in no better case than his Master who notwithstanding of his possession either in his own person or in the person of his Tennent cannot plead the benefite of a Possessory Judgement unless he had or should alledge upon some Right And if the Master were called as de facto
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
are made or ex post facto become valid and unquestionable ex capite Lecti as appears by the Law of the Majesty concerning Rights on Death-bed D. 401. Earl of Argyle contra The Lord Mcdonald 14. December 1676. THE Earl of Argyle having pursued the Lord Mcdonald for Reduction of a Feu holden of the Pursuer ob non solutum Canonem It was Alledged That the Defender had a disposition of the Superiority from Lochzeal before my Lord Argyl's Right by a Disposition likewayes from him And tho my Lord Argyle having compleated his Right before the Pursuer by an Infeftment upon the same will have Right to the Feu-duties after his Infeftment yet the Defender had Right to the bygones by the foresaid Disposition made to him which being of the Lands and Superiority and made to the Vassal himself was upon the matter an Assignation to the Feu-duties and a Discharge And farder That as to the Feu-duties after my Lord Argyl's Right he was in bona fide not to pay the same having the foresaid Disposition as said is And my Lord Argyle having done nothing upon his Right to make Interruption And therefore the Summonds ought not to be sustained upon Cessation and not payment before Intimation of the Pursuers Right to the Defender Both which Alledgances the Lords Found Relevant In the same Case The Lord Mcdonald having proponed an Alledgance viz. That my Lord Argyle was obliged by Bond to warrand Lochzeal at the Hands of the Defender and of any pursute competent upon the said Disposition made to the Defender quem de evictione tenet Actio agentem repellit Exceptio And the same being Found Relevant the Defender giving his Oath of Calumny thereupon The Lords In respect the Defender being in Town had refused at least had not come to give his Oath of Calumny had decerned But the Lord Mcdonald having intented Reduction of that Decreet upon offer to give his Oath of Calumny upon pretence that it was towards the end of the Session when his Oath of Calumny was craved and that upon some occasions he had been forced to go home It was Alledged for the Earl of Argyle that upon Mcdonalds Refusal to give his Oath of Calumny it was in construction of Law a Calumnious Alledgance and could not now be received And the greatest favour could be shown to him was that he should be heard to verify the same instanter The Lords did decern superseding Extracting until a day in January that in the mean time the Defender might verify the said Alledgance having taken his Oath of Calumny that the Write was not in his own Hand Actores Lockheart and Bernie alteri Cuninghame and Thoirs In praesentia D. 402. Litlejohn contra Mitchel eod die THE Lords Found That Bonds granted on Death-bed albeit they are Legacies as to that effect that they do affect only the Deads part yet they are preferable to other Legacies left in the ordinary wayes of Legacies and that the Defunct was in legitima potestate as to the affecting of his part and granting of Bonds to that effect Justice Clerk Reporter Gibson Clerk D. 403. _____ contra _____ eod die THO in Improbations the user of Writes questioned as false ought to compear to abide by the same yet a Commission was granted to take the Defenders Declaration that he did abide by In respect he was a person of great Age. D. 404. Wallace contra Murray eod die THERE being a pursute at the instance of a Creditor against the Representatives of an Intrometter with the Debitors Goods The Lords Found That the Passive Title of Intrometter could not be sustained after the Intrometters decease to make him Lyable as universal Intrometter And yet sustained the same in quantum he was locupletatus the Pursuer for the Defenders farder surety confirming before the Extracting of the Sentence a Testament as Executor Creditor to his Debitor Thesaurer Depute Reporter Gibson Clerk D. 405. Grant of Rosollis contra L. Bamff 19. Decem. 1676. THE Lord Bamff having acquired the Lands of Craigstoun from John Lyon did give three Bonds to the said John Lyon Blank in the Creditors Name containing each of them 5000 Merks And at the desire of the said John did give a Letter with the said Bonds with a Blank direction bearing that the said John Lyon having Disponed to him the Lands of Craigstoun for which he had become Debitor by certain Blank Bonds containing 5000 Merks And therefore desireing that no person might scruple to take the said Bonds For it should be no dissatisfaction to him that they took them without acquainting him but that it should be holden as if they had received the Bonds in the beginning and had their Names filled up therein at that time The said John Lyon did fill up the Name of John Grant of Rosollis in the said Bonds and delivered the said Letter to him putting a direction upon the same for the said John Grant Whereupon the Lord Bamff being charged did Suspend upon that reason that he ought to have Retention because the said Bonds were granted for the price of the said Lands and in contemplation of a valid surety free of all Incumberances and the surety not being valid In respect the Lands were affected with Hornings Inhibitions and Comprysings equivalent to the Sums contained in the Bonds he had in Law Condiction as being ob causam non secutam There was also compearance for the Donator of the said John Lyons Escheat who did produce his Gift and Decreet of general Declarator and Alledged that he ought to be preferred because he had Right to the Sums due by the said Blank-bonds In respect the Chargers Name was filled up in cursu Rebellionis And the said Blanks being ab initio the Rebells while they were Blank they fell under his Escheat and he could not fill up or deliver the same in prejudice of the Fisk. The Lords Found That the pretence foresaid of Condictio causa data tho competent against the said John Lyon himself if the Bonds had been filled up in his own Name would not be competent against the Charger if his Name had been filled up ab initio Because if the Suspender had been content to give Bond to him It would have been delegatio in which case the Exceptions competent against delegantem would not have been competent against the Person in whose favours the Delegation was made And that the Charger was upon the matter in the same case seing the Suspender by his Letter was content that the Bonds should be holden as if they had been filled up ab initio The Lords also Found That the said Bonds being Blank tho they continued Blank were the said John Lyons proper Bonds and if he had deceased before the filling up of the same they would have fallen under his Executry and consequently he being Rebel and his Escheat gifted and declared they fell under his Escheat And His Majesty and the Donator could not be
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
Yet it may be taken away by a Reduction Ex capite Metus Doli and minoris aetatis and Lesion And that in such pursutes the Reasons being in Fact and Lybelled either upon Force or Circumvention and Fraud are probable by witnesses and that the Reduction at Fordels instance upon that Reason viz. That the Disposition in question was found among the Defuncts papers the time of his Decease and was intrometted with and filled up by Caribber is ex eodem capite Doli Mr. John Hay Clerk D. 433. _____ contra _____ eod die AN Edict of Executrie being Advocate from the Commissars a Bill was given in desiring that the Advocation might be summarily discust seing both nearest of Kin Creditors and the Fisk were concerned that the Testament should be confirmed and execute which Desire the Lords thought could not be granted in respect of the Act of Regulation but it was thought a great Escape and Inadvertency that such Advocations should be past seing the Lords could not confirm Testaments and if any Partie should be prejudged by any Act of the Commissars it may be reduced upon the head of Iniquity And the Lords thought it was fit that a new Edict should be raised and if an Advocation should be sought the Reason should be discust upon the Bill D. 434. Earl Argyle contra Mcnaughtoun 23. Jan. 1677. IN the Case abovementioned Earl of Argyle contra Mcnaughtoun It was Found That Mcnaughtoun having acquainted the deceast Marquess of Argyle that he was to Marry with his Lady and that the Marquess having returned an Answer by his Letter of the Tenor abovementioned the said Letter imported his Consent to the Marriage and that the Marquess having consented he could not claim the Benefite of the Marriage Vide supra 3. January 1677. D. 435. Tailfer contra Sandilands eod die A Curator having in his Accompts given in an Article of Incident Charges upon occasion of the Minors Affairs viz. That he had met with Agents and others in Taverns in Relation to the Pupills Affairs and had been at Charges in drinking with them extending to a considerable Sum during the whole time of his Charge The Lords did not allow the same in the Terms foresaid But Ordained him to condescend upon the particulars And if he kept a Book and Diary of his Debursements so that he might warrantably declare that he had truely debursed the particulars thereinmentioned they enclined to modify the same to such a Sum as they should find reasonable D. 436. Home of Ford contra Steuart 24. January 1677. A Wadset being granted in these Terms That the Wadsetter should possess the Lands and that the Granter should free the Wadsetter of Levies of Horse and Feu-duties and Ministers Stipends It was Found that the Wadsetter is not Lyable to Compt and Reckon for the Duties and superplus of the same exceeding the Annualrent In respect the Wadset was a proper Wadset and the Wadsetter was not free of all Hazards of the Fruits Tennents War and Vastation Redford Reporter Mr. Thomas Hay Clerk D. 437. Ronald Grahame contra Sarah Rome eod die JOhn Rome being obliged by his Contract of Marriage with his second Wife to provide 10000 Merks in favours of himself and his Spouse in Conjunct-fee and the Heirs of the Marriage whilks FailÈieing to his own Heirs and Assigneys And to provide also 5000 Merks in favours of the Remanent Bairns of the said Marriage The Lords Found That the Father was Fiar of the said Sums and that the Heir of the Marriage and Remanent Bairns had an Interest only to succeed to him as Heirs of Provision in the same And that the Creditors might affect the said Sums and would be preferable to the Bairns Notwithstanding their Debts were Contracted after the said Contract of Marriage and Inhibition thereupon seing the Inhibition could not take away his Fee And the Import and Effect both of the said Obligements and Inhibition is only that the Father should do no fraudulent Deed without an Onerous Cause in prejudice of the same Gosford Reporter D. 438. Ardblair contra Wilson eod die A Bond being granted by James Bisset of Neitherbalcarne to the Laird of Ardblair for Love and Favour to be payed after his decease The Lords Found That the said Bond being granted without an Onerous Cause to be payed in manner foresaid after the Granters decease could not prejudge posterior Creditors who were in bona fide to lend their Money notwithstanding any such Latent Deeds and Bonds This Decision seems to be hard Seing it was lawful both to the Granter and Receiver of the said Bond to grant and receive the same And the said Donation being lawful ab initio could not become thereafter unlawful by any Deed of the Granter And Fraud cannot be pretended but where Creditors or others the time of the granting of such Bonds were prejudged unless it did appear by some speciality and circumstance in the case that there had been a design to Cheat and Circumveen these who were to lend their Money by granting and settleing upon the Relations of the Debitor his Estate and thereafter to get in his Hands his Creditors Means whom he was not able to satisfy which was Found in the Case of Maisson and Pollock and was not Alledged in this Case Nevoy Reporter Mr. John Hay Clerk D. 439. Sinclair contra Home of Renton eod die A Bond of Corroboration being granted for a Sum due upon a Wadset with power to use Execution without Requisition The Lords Found That the Creditor may summarly compryse upon the same without previous Requisition Glendoich Reporter Mr. John Hay Clerk D. 440. Nairn contra Stuart of Innernytie eod die A Presentation being granted by a Bishop to a Prebendary in favours of a person dureing his Lifetime and after his decease to his Son The Lords Found in a multiple poinding and competition betwixt the persons substitute in the said Presentation and another Prebendar provided by the succeeding Bishop by the decease of the first Prebendar That the Substitution contained in the Presentation foresaid did expire by the decease of the Father and that the Substitution was void In respect the Bishop could not in prejudice of his Successor grant a Presentation in the Terms foresaid bearing a TailÈie and Substitution Castlehill Reporter Mr. John Hay Clerk D. 441. Drumellier contra E. Tweeddale eod die IT being objected against Major Bunting being led as a Witness for Drumellier against the Earl of Tweeddale That he had given Partial Counsel at least had concerned himself as a Party for Drumellier In swa far as he had been at Consultations with him in Relation to the Process The Lords Found That he could not be a Witness tho he was a person of Integrity above exception and that he was free to declare that at the said Consultations the point whereupon he was to be used as a Witness was not in consideration Gibson Clerk D. 442. Grange Dick contra Oliphant eod die
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
given them to the Pursuer to be grassed he might have taken away his own Goods It was Replyed That the Pursuer was not obliged to debate the Right and property of the said Goods but in spolio he needed Lybel no more but that the Goods were upon his Ground and in his Possession and taken away vi and in manner Lybeled And spoliatus ante omnia restituendus The Lords debated among themselves whether the Defence be Relevant and did not decide the case Some being of Opinion that if it should evidently appear that the Pursuer was not in Possession of the Goods as suos but in behalf of the Defender as if there were a Writt betwixt the Pursuer and Defender bearing that the Goods were the Defenders and that the Pursuer contractu Locationis Conductionis had taken the same in graseing that the Defender could not be Lyable for SpuilÈie of his own Goods But if it should appear that there was any violence in taking them away he may be pursued for a Riot D. 460. Drumkilbo contra Mcmath and Oliphant eod die JAnet Mcmath Lady Grange being Creditrix to the Laird of Kilspindie And having upon an Arrestment in the hands of Drumkilbo obtained a Decreet to make forthcoming There was thereafter a Suspension of double poinding against the said Janet Mcmath and Sir Laurence Oliphant of Gask who pretended Right to the Sum due by Drumkilbo by an Assignation intimate before the Arrestment And in the Competition foresaid the said Sir Laurence was preferred But thereafter in an Improbation of the said Assignation at the instance of the said Janet Mcmath the said Sir Laurence having abiden by the same It was Found after a long and litigious dependence by the space of 50 Years that the Assignation was false And William Dick of Grange the said Janet her Son having thereafter intented a pursute against the said Sir Laurence to hear and see it declared that in respect the said Sir Laurence by his compearance and making use of the said false Assignation had been prefered and had rendered the foresaid Diligence by Arrestment ineffectual and had transacted and made benefite of the said false Assignation That therefore In swa far as he was Lucratus he should make the same forth-coming for payment of the Pursuers just Debt Especially it being considered that he had Discharged one of the Cautioners in Drumkilbo his Bond It was Answered That he was in bona fide to acquire a Right to the said Assignation neither knowing nor being accessory to the Forgeing of the same and he had made no benefite by uplifting from Drumkilbo any part of the said Debt but by transferring his Right in favours of Mr. John Blair which he had done bona fide And as to the Discharging the Cautioner it could not prejudge the Pursuer seing the Discharge would fall in consequence of the Assignation The Lords Found That albeit he were not accessory to the Forgery yet having used a false Write and having litigiously so long maintained the same and upon that occasion the Pursuer be ng altogether frustrate he ought to be Lyable in quantum lucratus and what he had gotten more by the Transaction with Mr. George Blair then he had given for acquireing the said Right And the Lords reserved Action to the Pursuer against the Cautioner And in case the Cautioner should be AssoilÈied without prejudice to have recourse against the said Sir Laurence as Accords Actores Lockheart Monnypenny c. alteri Cuninghame c. Mr. Thomas Hay Clerk In praesentia D. 461. _____ contra The Laird of Cramond eod die MR. Cornelius Inglis being Debitor to Mr. John Inglis of Cramond in the Sum of 3500. Merks He did give to Cramond for Security of the said Sum and for relief of Cautionries for him extending to towards 10000 M. a Bond for payment and relieving him of the said Sums with an obligement to Infeft in the Lands thereinmentioned for his Security and relief of the said Sums and a precept of Sasine whereupon Infeftment followed And thereafter Mr. Patrick Inglis the said Mr. Cornelius his Eldest Son did grant a Bond to Cramond relateing expresly to the said former Bond and Right of Relief and in Corroboration thereof and the Infeftment thereupon containing an Obligement for Payment and releif of the said Sums Thereafter the said Mr. Patrick did obtain from his Father a Right and Infeftment of the said Lands upon that narrative that he had undertaken the payment of his Fathers Debts and that he was engaged for him and that the said Right was granted to him for his Relief whereupon he obtained Possession and before any Diligence at the instance of any of the other Creditors he did pay some Annualrent to Cramond upon a Discharge relateing to Cramonds Right and Infeftment foresaid Thereafter there being a Multiple poinding raised against Cramond and some of the Creditors who had deduced a Comprysing against the said Mr. Patrick of his Right the Creditors Alledged that they ought to be preferred because Cramonds Right was only base and the said Mr. Patrick's Right was cled with Possession before any pretence of Possession in the person of Cramond and that they having Comprysed Mr. Patrick's Right are thereupon preferable to Cramond Whereunto it was Answered That Cramonds Right being a Right of Relief could not take Possession ex natura of the Right until a distress and because it was provided by the Right it self that Cramond should enter to the Possession in case of distress and in case he should not be payed of his Annualrent which he could not do before Declarator And that the Lords had diverse times Found that Infeftments of Warrandice whereupon there could be no Possession before Eviction should be preferred to posterior Infeftments and that Infeftments of Annualrent being anterior should be sustained in a Competition with posterior base Infeftments cled with Possession Because the first Term of Payment of the Annualrent was not come when the posterior Infeftment came to have Possession and that the Competition was not betwixt Cramonds and the Comprysers Infeftment upon the Comprysing but Mr. Patrick's own Infeftment and that Cramonds Infeftment was cled with Possession before the Compysers Right and Interest by payment of the Annualrent of the said Sum due to Cramond himself as appeared by the Discharge accepted by Mr. Patrick relating to Cramond his Right and Infeftment foresaid And that base Infeftments by the Common Law being valide And by the Act of Parliament K. Ja. 5th in anno 1540. It being provided that for obviating Fraud by granting private and latent Infeftments in prejudice of posterior Infeftments that are publick being either holden of the Superior or by Possession the said Act of Parliament cannot be extended to this Case In Respect Cramonds Right cannot be said to have been fraudulent and private as to Mr. Patrick In respect he did not only know the same but did ratify and corroborate the said