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
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
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
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
exceeding 200. merks the Jaylor might enlarge Prisoners for debt without any other Warrand but the consent of the Parties at whose instance they were imprisoned which they did upon that consideration that Poor People if they should be forced to suspend and relax with a Warrand to put them out would be sometime put to more Charges than the Debt doth amount to Five of the Lords did dissent being of the Opinion That the Prison being His Majesties Prison no person could be put in upon Letters of Caption unless the same were under the Signet and no person put in by Warrand of the said Letters could be enlarged without Letters to that effect nam unumquodque dissolvitur eo modo quo contrahitur And the Prisoner being put in for his Rebellion could not be enlarged unless he were relaxed And if Parties did suffer themselves to be taken and incarcerat for small Sums it was their own fault and more unexcusable the less the Sum be and majus minus non variant speciem And it being acknowledged by the Law they being Prisoners for greater Sums they could not be enlarged without a Warrand to put them to liberty and the Law making no distinction of greater and less Sums the Lords had not a Legislative Power to alter or qualifie the same without an Act of Parliament D. 239. Burnet contra Lutgrue eod die A Commission being directed for taking the Oath of a Stranger residing in Holland the Report was questioned upon that pretence that the Strangers Deposition was not subscribed albeit the Commission did bear that he should subscribe the same and yet it was sustained because of the Custom of Holland that the Judges only subscribe and the same was subscribed by them And it was adminiculate with a Letter from him bearing that he had declared before the Commissioners and that he would adhere to what he had declared Gibson Clerk D. 240. Marion Binnie contra Gilbert Scot eod die THE deceast William Scot of Bonington having three Sons William the eldest and Robert and Gilbert The said William by his Contract of Marriage had the Lands and Estate of Bonington disponed to him by his Father Mr. James Scot but was not infeft therein and after his decease his Brother Robert having succeeded to him did renew a Bond granted by the said William in favours of Robert Riddel and having retired the said William's Bond did grant a new Bond for the Sum therein contained And the said Robert having also deceased before he was infeft in the Estate or served Heir to the said William and the said Gilbert the third Son having succeeded a Pursute was intented at the instance of the Relict and Executrix of the Creditor against the said Gilbert as representing the said William and Robert his Brothers at least to hear and see it found and declared that the said Bond granted by Robert was granted by him in contemplation and lieu of the said William's Debt and Bond and that it ought to affect any Estate that did belong to the said William and in special the benefite of the said Contract of Marriage and disposition therein made in favours of the said William It was Alledged for the Defender That he did not Represent Robert nor William upon any Passive Titles and tho he should represent William neither he nor the Estate would be Lyable to the said Debt In respect the samen was extinct and innovate by a new Bond granted by the said Robert whom neither he did nor would Represent And the said Bond being granted only by Robert could not affect any thing belonging to William and he was not concerned to debate upon what account the said Bond was given by Robert The Lords did encline to sustain the Declarator upon that head that the said Innovation was only to the effect the Creditor might be the better secured and satisfied the said Robert being Appearand Heir for the time and who if he had lived would have perfited his Right and obtained himself served Heir to William but being prevented by Death so that the said Bond was altogether ineffectual the Pursuer had condictionem causa data causa non secuta to be Reponed against the said Innovation and the Defender was in dolo pessimo to question the same seing nemo debet locupletari cum aliena jactura And he ought not to have William's Estate without payment of his Debt And some of the Lords did urge and instance the case aftermentioned viz. If the Younger of two Brothers the Elder having gone Abroad and thought to be dead should obtain himself served as Heir to his Father and the Creditors of the Father conceiving that he had Right should renew their Bonds and give back these that they had from the Father and thereafter the Elder Brother should return and should be served Heir to his Father whether in that case the Creditors might have Action against the Elder Brother and Estate notwithstanding of the said Innovation But because the case was New and not without Difficulty The Lords before Answer thought fit to try what way it could be made appear that the said Bond was in lieu of a Bond granted by William Newbyth Reporter Gibson Clerk D. 241. Broun contra Ogilvie eod die A Person being pursued for an Annuity of Money did claim the benefite of Retention conform to the late Act of Parliament But the Lords Found that albeit Retention was granted for relief of Debitors of their Taxation and that the Debitor was alike concerned as to the end foresaid whether he payed the Annualrent as the usura and profite of a principal Sum or as Annuity due upon a personal Bond yet the Act of Parliament mentioned only Annualrents And being as all Acts of Parliament stricti Juris specially such as are correctoriae Juris communis it could not be extended beyond the Letter of the Law Nevoy Reporter Gibson Clerk D. 242. Collonel Fulertoun contra The Laird of Boyne eod die THE deceast Laird of Towie having named his Relict now Lady Boyne Tutrix to his Daughter and in case of her Marriage Collonel Fulertoun The said Collonel pursued the Laird of Boyne for delivery of the said Pupil It was Alledged That her Mother and her Husband would entertain the Pupil gratis It was Answered That Boyne being her Step Father and having no other Relation but that of Vitricus which in Law is not favoured his offer to entertain is not Relevant against the Tutor who has the Trust both of the Pupils person and Estate And it is to be presumed that the offer of the Step-Father is upon a design upon the Pupill her Person and Fortune and that the case had been determined in terminis 4. July 1649. Langshaw contra Mure. The Lords Repelled the Defence and Ordained the Pupil to be delivered to the Tutor Strathurd Reporter Gibson Clerk D. 243. _____ contra _____ eod die THE Lords Found That a Warrand could not be given to cite at the Mercat
Contract betwixt him and his deceast Father to Infeft Mistress Margaret Falconer his Sister in an Annualrent of the principal Sum of 1000 Merks out of the Lands of Halcartoun redeemable upon 1000 Merks And to pay the principal Sum upon Requisition Sir Patrick Falconer immediat Younger Brother and Heir of Line to the said Mrs. Margaret Assigned the said Sum and Contract in favours of Robert Robertson And the said Robert having intended Action against the now Lord Halcartoun as representing his Father It was Alledged That the said Sum being conquest in the person of the said Mistress Margaret it did not belong to the Heir of Line but to the immediat Elder Brother as Heir of Conquest The Lords having heard the Cause in praesentia and being resolved to decide the question betwixt the Heir of Line and Heir of Conquest as to Heretable Bonds bearing such Obligements to Infeft which had been often before in agitation but never decided but the time of the English Did Find that the said Bond and Sum did belong to the Heir of Conquest who would have succeeded in case the Right had been perfected by an Infeftment Some of the Lords were of the Opinion That Bonds of that Nature should belong to the Heirs of Line for these Reasons 1. That the Heir of Line is General Heir and Successor in universum Jus tam active quam passive and is lyable to the Onus Tutelae and other Burdens and penes quem onus penes eundem emolumentum unless the benefit of Succession be provided otherways either Provisione hominis in the Case of TailÈies or Legis and there is no Law settling upon the Heir of Conquest the Right of Succession as to Heretable Bonds whereupon no Infeftment has followed And the Law of the Majesty _____ is only in the Case of Terrae Tenementa Feuda as appears by the very Words of the said Ancient Laws and by Craig and Skeen de Verborum significatione in verbo Conquestus and verbo Breve de morte antecessoris 2. As Bonds cannot be called Heretage so they cannot be esteemed to be Conquest Heretage being properly Lands wherein a Person succeeds as Heir to his Predecessor and if the Heir of Conquest who is now found to have Right to such Bonds should decease tho the samen would descend and belong to the Heir of Line yet such Bonds cannot be called Heretage And Minors qui non tenentur placitare de haereditate paterna could not plead the same Priviledge in the case of Heretable Bonds 3. Lands and Feuda can only be said to be Heretage or to be Conquest when Parties have a real Right to the same by Infeftment but as to Bonds they do not settle Jus in re but at the most a Jus ad rem 4. Comprisings Dispositions and Reversions being more of the nature of Conquest especially Reversions which are real Rights and do militate not only against the Granters but singular Successors do descend and pertain to the Heir of Line and not to the Heir of Conquest D. 296. Veatch contra Pallat. 10. November 1675. THE Lords in the Case beforementioned February 9 and 12. 1675 Veatch against Pallat having resumed the Debate and it appearing upon Tryal that the Common Debitor Sanderson the time of the granting of the Assignation in anno 1662 in favours of Ker and Brown was not only Rebell but was in effect Fallitus and Lapsus They preferred Veatch to Pallat. D. 297. Gibson contra Rynold and Taylor 16. November 1675. A Disposition being made by a Woman cloathed with a Husband of her Liferent of a Tenement redeemable upon the payment of a certain Sum within a short Term therein mentioned allanerlie A Decreet of Declarator of the expireing of the Reversion was obtained and thereafter a Decreet of Removing at the instance of the Person Infeft upon the said Disposition against the said Woman and her Husband Whereof a Reduction and Suspension being raised upon that reason that the suspender was cloathed with a Husband the time of the expiring of the said Reversion and of the said Decreets so that non valebat agere nor use the Order of Redemption and the Husbands Negligence in suffering the Reversion to elapse and the said Decreets to be obtained ought not to prejudge her seing she was content yet to purge by payment of the Sum contained in the Reversion The Lords upon Debate amongst themselves had these Points in consideration viz. 1mo Whether or not a Redemption being limited and temporary as said is in the Case foresaid there may be yet place after the elapsing of the Term to purge And some of the Lords were of the Opinion that Reversions being stricti Juris there can be no Redemption neither in the case of Legal nor Conventional Reversions after elapsing of the Term nor place to purge But this Point was not decided 2. It was agitat whether a Woman cled with a Husband may be heard to purge upon pretence that non valebat agere as to which Point some of the Lords did demurr and it was not decided The Letters being found orderly proceeded upon an other Ground viz. In respect of the Decreet in foro contradictorio But it is thought that such Reversions should expire even against Women cloathed with Husbands seing it cannot be said that they are in the case of Minors and non valentes agere because they are cloathed with a Husband And by the contrary having the assistance and advice of their Husbands they are more able to go about their Affairs And if their Husbands refuse to concur they may apply to the Lords and desire to be authorized by them Strathurd Reporter Monro Clerk D. 298. Halyburton of Innerleith 17. November 1675. THE Lords upon a Bill presented by _____ Halyburton late of Innerleith Prisoner in Edinburgh for Debt did permit that until January next he should in the Day-time go out with a Keeper the magistrates being lyable if he should escape This was done upon pretence that he intended to settle with his Creditors which he could not do unless he were allowed the Liberty foresaid But some of the Lords were of the Opinion that the Emprisonment of a Debitor being the ultimate length of Execution and not only custodiae causa but in effect that taedio and foetore carceris Debitors may be driven to take a course with their Creditors That therefore the Lords had not power to give any Indulgence or Permission contrare to Law and in prejudice of Creditors without their consent D. 299. Mr. Vanse 18. November 1675. CAptain Martine being pursued before the Admiral for wrongs done by him in taking free Ships and Goods upon pretence that he was a Caper and that the same belonged to the Kings Enemies and having desired an Advocation the Lords thought fit that he should find Caution and because he refused and pretended he was not able did commit him and thereafter he having escaped out of the Tolbooth of
said Bond does terminate upon the Wife and her Heirs yet the Husband will be Fiar both as dignior and because the Right of the Sum will pertain to his Heirs in the first place and to the Wife and her Heirs only upon their failÈieur and as Heirs of Provision to them And Therefore In the present case the Money being lent by the Husband and being provided after his decease to his Son Robert and the Heirs of his Body whilk failÈiening the Heirs of the Marriage betwixt the Husband and the Wife and to the Wifes Heirs only in the last place It is thought That her Husband is Fiar and that the Wife and her Heirs will only have Right as Heirs of Provision unto him And if Robert should have had Children or if there had been other Children to the said Robert Elder by the said Katharine it were absurd that they should have had the Right of the said Sum which was lent by the Husband not as Heirs to him being their Grand-father or Father but as Heirs to the said Katharine being their Mother or Grand-mother or that the said Katherine surviving her Husband should have power as Fiar of disposeing the said Sum or to have given it to a second Husband in prejudice of the said Robert her Son or the Heirs of his Body and the Heirs if there had been any thereafter procreate of her Husband and her tho descended of both If it be found by the Lords that either the said Robert Selkirk Elder or his Son Robert was Fiar the said Katharine must be served Heir of Provision to the Fiar Substitution in Legacies A Legacy being left to a Person and failÈiening of him by decease to another Quaeritur What the Import of that Substitution is Answered It is thought That it is Substitutio Vulgaris and that the Effect of it is That if the Legatar die before the Testator so that the Right do not take effect in his Person it should belong to the Substitute But that is not fideicommissaria So that the Legatar dieing after the Testator it would belong to his Executors and not to the Substitutes Successio in Maternis A Grand Father upon the Mothers side having the time of his decease two Daughters and Children of a third Daughter Quaeritur If the two Daughters will only succeed and exclude the Children of the third Ratio Dubitandi That Representation is in order to the standing of Families and in the case of Primo-geniture whereas in Successione materna the Interest of Families is not considered seing the Grand Children by their Mother has not somuch as caput in Familia And for the same reason mobilia because they are not the Foundation of Families admitt no Representation Answer It is thought by our custom The Children of the deceist Daughter will succeed with their Materterae Et non potest reddi ratio omnium quae a majoribus constituta sunt If the Children of the deceast Daughter do succeed Quaeritur If the deceased Daughter has left Sons and Daughters whether the eldest Son of the said Children will succeed to their Grand Father Or if all the Children will be Heirs Portioners as to their Mothers part Seeing for the same reason that their Mother and Aunts are Heirs portioners viz. That they are finis Familiae a fortiori they who are not in Familia at all ought to be Heirs portioners Answer It is thought that the eldest Son of the deceast Daughter will succeed as Heir portioner with his Aunts and the Law doth favour not only Families as to preservation after they are constitute but likewise as to their Constitution And the eldest Son albeit he be not in Familia materna may constitute and be a head of a Family of his oun Successio in Stirpes SI duo Conjuges ita testentur post utriusque obitum utriusque haeredes ex aequo successuros haeredes fore tunc non in capita sed stirpes succedunt in duas aequales portiones haereditas dividenda est quia quilibet suos haeredes aeque dilexisse creditur illis ex aequo prospicere Thes Bes verbo Gleich 62. P. 323. 324. sect ult De Successione in Feudo amisso quo Jure censenda utrum Haereditatis an Conquestus QVaeritur De Feudo amisso reverso quo Jure censendum sit utrum Haereditatis an Conquestus de omnibus commissi speciebus competit sive ob Alienationem sive Disclamationem sive Purpresturam vel Baratriam aut qualemcunque Feloniam aliudve delictum feudum apertum dicatur Sed quia Recognitio frequentissimus apud nos feudi ex commisso vindicandi modus increbuit de ea praxi nostra maxime solenni textui accommodatiori quaestionem agitabimus Decisionem ad reliqua commissa indistincte porrigendam praefati Quaeritur igitur cum Superior feudum per Recognitionem sibi asseruit utrum feudum Recognitum post obitum ipsius ut conquestus ascendat An vero ut haereditas cum feudo dominanti descendat posito feudum dominans haereditarium esse Quaestio haec in se difficilis gravissimas consequentias secum trahens haud aequali tamen difficultate in omnibus Recognitionis speciebus laborat Quod ut patefiat sciendum duas apud nos invaluisse Recognitionis species ex causarum diversitate diversas unam ob defectum Vasalli alteram ob delictum Ex posteriori causa feudum ob delictum admissum Vasalli dicitur proprie committi Ex priori Vasalli prosapia quam in prima feudi concessione dominus ad feudi successionem asciverat extincta feudum dicitur finiri cum stemmate in quo resederat exspirare si enim ab initio contessum est alicui haeredibus masculis ex ipsius corpore progenitis vel descendentibus masculis Vasallo mortuo nec ullo ex descendentibus masculis superstite dominus feudum ab haeredibus talliae vel per foeminas descendentibus revocat hanc feudi revocatïonem Balfurius Recognitionem vocat ejus praxin prodidit in Tract de Recognitionibus datam 18. Decemb. 1506. Regio Advocato agente contra Joannem Margaritam Auchtrans haeredes alterum talliae alteram lineae Et hoc Genus Recognitionis etiam in feudis Francis locum habet feudo hac ex causa revocato etsi dubitari potest utrum in persona domini ád quem revertitur Haereditatis an Conquestus naturam induat certum est eodem jure quo feudum dominans censeri eandem naturam qualitatem sortiri respectu successionis omni alio respectu qui ex distractione divisione propriorum seu haereditatis conquestuum secundum nostram consuetudinem posset emergere Quin etiam hoc casu non solum Dominium directum dominium utile attrahit sed possessio civilis possessionem naturalem advocat adeo ut Dominus directus possessionem naturalem nactus non dicatur novam adeptus sed veterem continuare possessionem
by the Act of Parliament is secured and his Right cannot be questioned unless he be particeps fraudis or acquire the same without an Onerous Cause which by the Act of Parliament is only probable Scripto vel Juramento Yet the Lords enclined to reduce the Right granted by the Son unless it were offered to be proven that it was for an Onerous Cause in respect of several presumptions alledged and informed by the Pursuer And before Answer as to the Relevancy ordained both Parties to condescend upon their presumptions hinc inde of Fraud or the Cause Onerous for the granting of the said Right and to prove the condescendence I have ever thought that the practice of the Lords to ordain Parties to prove before Answer as it is late is accompanied with many inconveniencies seing by such Acts which are not of Litiscontestation Processes are still keeped loose and after that irregular way of probation the debate of Relevaney is again resumed to the great vexation both of Parties and Lords and after the Lords Interloquitor of Relevancy there may be again Litiscontestation So that upon the matter there are two Litiscontestations in one Cause Newbyth Reporter It being again debated What the Certification should be in such Acts. viz. Whether the Alledgance should be holden as not proponed or that the Lords should advise Which in effect is no certification The Lords were not clear to detetmine which is a great Informality and a pressing reason against that anomolous way D. 49. Reid contra Tailzifer 16. Novem. 1666. IN the case William Reid contra Tailzifer and Salmond It was Found That a Testament is to be thought execute so that thereafter there is no place to a non Executa when a Decreet is recovered against the Debitors though the Executor decease before he get payment Because the Right of the Debt is fully established in his person by the Decreet and he having done diligence it ought not to be imputed to him that the Debitor is in mora as to the payment of the Debt And there being Jus quaesitum by a Decreet and Execution having followed thereupon by Horning after which Annualrent though not due ex pacto yet becometh due ex lege or by Comprysing at the instance of the Executor and Infeftment thereupon It were absurd that all these Rights should evanish which would necessarly follow if there were place to a non Executa Seing the Decreets and Rights foresaid following thereupon could not be transferred or settled in the person of the Executor ad non Executa who doth represent the Defunct only and not the Executor at whose instance the Decreet is obtained and Execute D. 50. Purves contra Blackwood Eod. die ADam Purves having pursued Reduction and Improbation of a Comprysing and the Grounds and Warrands thereof against Blackwood The Lords In respect the Comprysing was deduced Twenty four Years before did refuse to grant Certification against the Letters ad Executions and against one of the Bonds being Registrate when the principal Bonds were given in to the Clerk Register to ly in publica custodia In respect of the Troubles of the Time and the loss and disorder of the Registers and that the Extract was produced and the Defender was content to abide at the Truth thereof Hay Clerk And Newbyth Reporter D. 51. Govan contra Paip 24. Novem. 1666. IN the case Govan contra Paip The Lords Found That an Assignation not being intimated in the Cedents time and consequently the Debt being in bonis Defuncti ought to be confirmed But the Lords in consideration that the Debt was small Found Process at the Assigneys instance he finding Caution for the Quot effeirand thereto D. 52. contra Miln Eod. die An Order being used for Redeeming a Wadset the Executor Creditor of the Wadsetter pursued the person in whose hands the Consignation was made for payment of the Sum Consigned And in the Process the user of the Order was called and Decreet was obtained but before it was Extracted he deceast and there was debate upon the Oath of the Consignator The Lords Found That the user of the Order being a person having interest and called ab initio nothing could be done until the Process was transferred against some person representing him In the same Process it was argued amongst the Lords whether a Sum being consigned upon an Order of Redemption the user of the Order may pass from it and lift the Sum without consent of the Wadsetter And it was remembered by some of the Lords That upon an Instrument of Consignation Process was sustained at the instance of the Wadsetter against the Depositar in whose hands the Sum due upon the Wadset was consigned for making the Sum forthcoming But in this case nothing was done It appeareth that after Consignation Jus is Quaesitum to the Wadsetter so that the Sum being consigned and sequestrate to his behoof cannot be uplifted without his consent D. 53. Lesly contra Bain 6. Decem. 1666. IN a pursuit to make forthcoming after serious deliberation and debate amongst the Lords as in a case daily occurring and wherein the Decision would be a preparative and practique It was Found That a pursuit to make forthcoming a Sum of Money due to a Debitor is in effect Execution and equivalent to a poinding Seing Money being in nominibus and not in specie could not otherwayes be affected and poinded and therefore could not follow but upon a Decreet and not upon a Bond not Registrate 2. It was Found that an Arrestment is but an Inchoat and incompleat Diligence and notwithstanding thereof the Sum Arrested remaineth in bonis of the Debitor Seing notwithstanding thereof Goods belonging to a Debitor may be poinded As also Arrestment being a Negative Diligence whereby a Sum Arrested is secured so that the Debitor cannot uplift and the person in whose hands the Arrestment is made cannot pay or give away the same in prejudice of the Arrester and as in immobilibus Inhibition doth not establish a Right in the person of the Creditor unless he deduce a Comprysing but doth affect the same so that the Debitor cannot prejudge the Creditor and his Diligence if he Compryse There is Eadem Ratio in Arrestments in mobilibus Upon these Grounds it was Found That the Debitor deceasing the Sums Arrested being in ejus bonis ought to be confirmed and that the Creditor could not have Action against the person in whose hands the Arrestment was made and the Appearand Heir of the Debitor called for his interest but should confirm himself Executor Creditor D. 54. Monteith contra E. Calender and Gloret 7. Decem. 1666. THE Laird of Parkley Hamilton as principal and Hamilton of Kinglassie and certain others his Friends as Cautioners being Debitors in Two Bonds Kinglassie in consideration that Parkley had Disponed to him a Right of Wadset which he had to the Lands of Touch by a Contract did oblige himself to satisfy and pay the Sums contained in the saids
Defunct was fatuus incompos mentis And the Relevancy being questioned because no Act or Circumstance or qualification was Libelled inferring the Defunct to be in that condition The Lords Ordained the Pursuer to condescend Wallace alt Hog D. 77. Harroway contra Haitly 14. June 1667. JAnet Harroway pursued the Heirs of Alexander Haitly her Husband to hear and see the Tenor of her Contract of Marriage with her said Husband proven being lost as was pretended the time of the Troubles It was alledged that no Adminicle in Write was Lybelled or produced And whereas it was Lybelled that John Nicol was employed as Writer for drawing of the Contract the double of it was insert and extant in his Servants Stile-Book The said Stile-Book being neither a Write under the Defuncts hand nor a Minute nor a Record Extant in any Register could not be sustained as any Adminicle The Lords Albeit it was offered to be proven by the persons alledged to be Writer and Witnesses to the Contract that it was subscribed and of the Tenor Lybelled and other probabilities were urged Yet they did not sustain the Summonds without an Adminicle upon that consideration in special that our Law ob Lubricam fidem of ordinary Witnesses against whom there is possible no legal exception deferring so little to their Testimony That Transactions Agreements or Promises above the value of 100 pounds cannot be proven by Witnesses If such pursuites should be sustained without Adminicles of Writ Contracts of greatest importance might be made up and proven by Witnesses It was remembred by some of the Lords that in the Process Corsar contra Durie The Lords were so tender that upon a contentious debate a Seasin was found not to be an Adminicle D. 78. Antrobus contra Anderson Eod. die GEorge Antrobus English-man pursues William Anderson Provost of Glasgow for 234 lib. 13. shillings Sterling due by John Herbertson sometimes Baillie of Glasgow upon that ground that being charged to take the Debitor upon Letters of Caption he had refused to concur with the Messenger It was alledged that the Defender was not in sight of the Rebel and though it be pretended that it was shown to the Defender that the Rebel was in the same House in another Room for the time yet the Defender being chief Magistrate and Provost of the Town he was not obliged to go himself to seek the Rebel and it was sufficient he was willing to send his Officers and did send them to that effect Especially it being considered that the Provost was charged about Nine of the Clock under Night and the Army having come that same Night to Glasgow he was the very time that the Messenger charged with the Quarter-Master and other Officers about the business of quartering the Forces All which amounteth to a Relevant Defence to free the Defender of an odious pursuit the pursuer having no prejudice in respect the Rebel was and is notourly Bankrupt and was imprisoned a few dayes after and continued a long time Prisoner in Glasgow The Lords Found the Alledgance Relevant The Lords are in use to sustain such Actions in subsidium against Magistrates for payment of the Debt when they suffer the Debitor to escape out of Prison But when a Magistrate is charged with Letters of Caption bearing no Certification but Horning it appears hard to me that the Law having defined and prescribed the pain and certification that the Lords should sustain any other penal Action without the warrant of an Act of Parliament And that the Magistrates for a Culpa or neglect should be Lyable to the whole Debt which may be a great Sum. If the Action be considered not as a penal Action but for Damnage and Interest it should be only sustained in so far as the Creditor is prejudged so that the Debt being either recoverable and the Debitor in alse good case as before or being Bankrupt the time of the Charge the Magistrates may be denounced upon the Caption or censured for their Contempt but ought not to be Lyable for the Debt in solidum Scot Clerk D. 79. Davidson contra the Town of Inverness Eod. die THere being a Decreet of the Dean of Gild of Innerness against an Unfreeman Unlawing him in Three Hundred Pounds for Trading and a Suspension and Reduction being raised of the same upon that reason viz. That the Suspender dwelt without the Towns Jurisdiction And that by the Acts of Parliament Unfree-Traders may be charged to desist and to find Caution to that effect But the Town or Dean of Gild cannot proceed to process or unlaw them there being no such Act of Parliament to warrand it but only to Charge as said is and to confiscate the Goods D. 80. Forbes contra Blair Eod. die DOctor Forbes and his Spouse having recovered a Decreet against David Edgar The said David did grant a Disposition in favours of his Mother whereof the Doctor and his Spouse did intent Improbation and Reduction and after long dependence Certification was granted and Extracted But the Defender having given in a Bill craved to be Reponed pretending that the Certification was granted in Winter when the Defender being an Aged Woman and attending one of her Children being Distracted could not come in the time of a Storm and within five or six dayes after the Certification was granted she came and produced the Disposition The Lords before Answer whether they would repone against the Certification Ordained them to dispute upon the Reasons of Reduction viz. That the Disposition was inter conjunctas personas without an Onerous Cause and that the Condescendence was not relevant viz. That the Disponer had granted Bond for Aliment and Entertainment of him and the other Children to his Mother and for her Terce In respect the said Pretences were only patched up to colour the said fraudulent Disposition And that the said Disponer pendente lite and after Sentence could not in prejudice of the Pursuer give a Bond to be the ground of the said Disposition But if there were any ground of the said pretended Debts the Defender should have recovered Decreet for the same and though the Debt were without question the common Debitor contrare to the Act of Parliament could not make a voluntar Disposition in prejudice of the Pursuers Diligence to gratify and prefer another Creditor It was Answered That by the Act of Parliament the Reason viz. That the Right was granted without an Onerous Cause is only probable Scripto vel Juramento and that the Disponer not being inhibited the Defender might lawfully sibi vigilare and take a Right for a just Debt And by the Act of Parliament the Diligence that disableth a Debitor to give and a Creditor to take a voluntar Right is not a Dependence or a Decreet but Inhibitions and Hornings which are so publick that the Leidges may and ought to take notice of them The Lords were tender to repone against the Certification and yet they thought not good to take away the
before the Sheriff in the interim D. 111. Hay contra Drummond 26. Novem. 1667. IN a Reduction Hay of Haystoun contra Drummond and Hepburn A Seasin being called for The Defenders having alledged that the same being Registrate and they condescending upon the Registration the pursuer should Extract it himself The Lords did debate amongst themselves whether the Defender should be obliged to Extract and produce the Seasin Some were of the opinion that there is a difference betwixt Decreets and Registrate Bonds and such like and betwixt Seasins and Charters which being the Defenders own Evidents and the principals not being in the Registers they are presumed to have them and if they have them not ought to Extract them Others thought that seing Extracts do satisfie the Production in Reductions If the Defenders have neither Principals nor Extracts and be content to make Faith thereupon it were hard they should be at the Charge to Extract them in order to a Process against themselves The Lords did nothing upon the Debate The Lords did resolve and caused intimate to the Advocates That hereafter they would only give two Terms in Reductions and three Terms in Improbations D. 112. DalÈiel contra eod die THE Minister of Prestonhaugh Mr. John DalÈiel pursued for the Teinds of Lanton upon his presentation to the said Kirk and Teinds Parsonage and Viccarage It was Alledged no process unless he were presented to be Prebendar seing the said Kirk is a Member of the Collegiate Kirk of Dumbar and cannot be made appear to be dissolved and Erected in a several Rectory The Lords Found That being presented to be Minister at the said Kirk and to the Teinds which are the patrimony of the Prebendar it is equivalent as if he were presented Prebendar As when there is a presentation to a Kirk which is a Parsonage and to the Teinds the Minister will have Right though he be not presented to be Rector or Parson D. 113. E. of Lauderdale contra Vassals of Musselburgh 5. Decem. 1667. IN a Reduction and Improbation at the instance of the Earl of Lauderdale against the Vassals of Musselburgh and in special Major Biggar and others Heretors and possessors of the Lands of Hill The Lords Found That the Major having produced a more eminent progress and which he alledged would exclude the pursuer no Certification could be granted contra non producta The Defender not being obliged to show any other Writes untill these which are produced be discussed The Lords Found also That the Defenders are not obliged to declare that they will use no other Writes than these which are produced The only difficulty being that the reason of Reduction could not be disputed until the Production be closed and if the Writes produced should be improven or reduced the Pursuer would be put to a new process of Improbation or return and crave Certification after Dispute in Causa which is incongruous in Form The Lords were of Opinion that in the same Process the Pursuer after the discussing of the Writs produced might thereafter crave Certification contra non producta D. 114. Fountain contra Maxuel eod die ALbeit the Lords are tender in Exhibition of Writs unless it be proven that the Defenders had the same the time of the intenting of the Cause or had fraudfully put the samen away before which is difficilis probationis Yet in an Exhibition at the instance of _____ Fountain against Maxuel of Nethergate they decerned to exhibite albeit it was not proven that the Defenders had the Writes at or since the intenting of the Cause In respect it was proven the Defender had medled with the Writs being in a Charter Chest and had offered to Transact concerning the same and so was presumed to have put them away fraudulently There being a great difference betwixt a transient having of Writes and a down right medleing and Intromission which being proven though it be before the intenting of the Exhibition doth oblige the Intrometter to be answerable for the same D. 115. Collector of the Taxation contra the Parson of Oldhamstocks 6. Decem. 1667. IN the Case The Collector of the Taxation contra the Parson of Oldhamstocks a Question was moved whether the Successor in the benefice be Lyable for the Taxation due by his Predecessors his Patrimony consisting most of Teinds But was not decided at this time D. 116. Mr. Rodger Hog contra The Countess of Home 11. Decemb. 1667. AN Inhibition being served upon an Obligement to warrand A Reduction was thereupon sustained though it was alledged there was neither Decreet of Eviction nor Liquidation of distress the pursuit being only a Declarator and the Decreet being only effectual after Eviction and Liquidation which accordingly was declared by the Lords D. 117. Inter Eosdem eod die BEtwixt the same Parties It was alledged that the Defenders Right was ratified by a Creditor who had a Comprysing expired so that the pursuer had no interest to question the Defenders Right It was Answered That the pursuer desired only such Right as was after the Inhibition to be reduced without prejudice of any other which he could not nor was obliged to debate hoc loco The Lords notwithstanding Found the Alledgance Relevant D. 118. Hamilton contra Lord Belhaven 13. Decem. 1667. RObert Hamilton Clerk pursued the Lord and Lady Belhaven to hear and see it declared that a Minute betwixt him and them concerning the Tenor and Articles Lybelled is null the clause irritant therein mentioned being committed The Lords refused to sustain the pursuit unless the Minute were produced Albeit it was alledged there could be no prejudice in respect a Minute of another Tenor could not be prejudged and a Minute of that Tenor Lybelled should be declared void upon the reason Lybelled D. 119. Rioch contra Eod. die AFter Litiscontestation upon an Exception of payment the Defender who was pursued as Lawfully charged to enter Heir Desired to be admitted to renunce which was refused because by the proponing the Defence Gesserat se pro haerede And Litiscontestation is a judicial Contract D. 120. Rannolph Davidson contra Richardson Eod. die A Ship being declared pryse Because the Loadning of Salt belonged to a Frenchman the Skipper and Steersman having declared upon oath that the Loadning was taken in at the Rotchel upon the account of the said Person The adjudication was quarrelled by a Reduction upon diverse reasons and in special these that the Deposition of the Skipper and Steersman were forced and extorted from them and that it was offered to be proven and that it did appear by diverse Letters Certificats and Documents produced that the Loadning did belong to the Owners of the Ship who were Citizens of Dantzick and Hamburg and were not the Kings Enemies The Lords in this Process Found that the Owners may be heard to reduce the Sentence upon reasons omitted by the Skipper 2. It being debated amongst the Lords whether the Skippers Declaration should so prejudge and
Son cannot be said to have Right or to Succeed effectualy before that time and so ought likewise to be lyable to the Debts contracted at any time before his Fathers decease D. 131. Balmedie contra the Baillies of Abernethie 15. Jan. 1668. A Decreet at the Procurator Fiscal's Instance of the Regality of Abernethie before the Baillie of the Regality against the Weavers in the Town of Abernethie for contraveening the Act of Parliament 1661 Anent the breadth and bleetching of Linnen Cloath was suspended upon that reason that the Bailies within the Town of Abernethie were only Judges competent to the Inhabitants within the Burgh The Lords Found that the Town being only a Burgh of Regality had jurisdiction within the same And the Baillies jurisdiction is Cumulative and not Privative unless they had it expresly by their Infeftment Privative and that in such cases Locus est Praeventioni D. 132. Parkman contra Allan Eod. die IN the late War betwixt his Majestie and Holland and Denmark a Swedish Ship being taken by a Scots Caper and adjudged Pryze A Reduction of the Admirals Decreet was pursued upon diverse reasons and in special this That by the Treatie betwixt his Majestie and the Crown of Sweden the Subjects of Sweden may traffique with their Alleys though Enemies to h s Majestie with freedom and carry in their Ships Counterband Goods Except such as are contained in an Article of the said Treaty being for the most part Armes and Instrument a Bellica and that the Goods in question which they had carried in their Ships to Holland viz. Tarr and stock fish were not of that nature 2. That when the said Ship was taken there was none of the saids Goods aboard and that it could not be declared Pryze upon pretence That immediatly before they had carried the said Goods to Holland seing it is not unlawful not a breach of Treatie betwixt his Majestie and Sweden that the Subjects of Sweden should continue the same intercourse and freedom of Trade they had formerly with their friends though now the Kings Enemies and if they carrie counterband Goods the only hazard is that if they be deprehended carrying the same They may be confiscat conform to the Treatie with Sweden bearing si Deprehendantur which is Consonant to the custom of all Nations and of the Admirality of England It was Alledged that the Ship in Question should not have the benefit of the Treatie having Served the Danes the Kings Enemies and being fraughted and loaded with Tarr from Noraway upon the account of Danish Merchants and with stock Fish which they had carried to Amsterdam That it was expresly provided by the Treatie with Sweden that they should not carry bona hostium and that tho the Danes were not the Kings Enemies yet Tarr and Stock-fish are Counterband Tarr being a Material so useful and necessary for a Naval Warr and that by the Treatie Commeatus is counterband and Stock-fish falleth under the notion of Commeatus and that by the Commission given by the Admiral to the Capers they are empowered expresly to seize on Ships not only while they have counterband Goods caryeing to his Majesties Enemies but upon the return having sold and disponed upon the same It was Replyed 1. That by the Law of Nations which is clear from Grotius de Jure Belli Goods that are usus promiscui both in Warr and Peace are not vetita and counterband and two Nations being engaged in Warr with others that are at friendship with both are allowed libertie of Trade with either as to such Goods And that Tarr is of that same nature and Commeatus except in the case of portus clausus or Civitas obsessa and from which deditio may be expected if not supplied 2. His Majesties Declaration of Warr with Holland bears that Ships carrying counterband to Holland if they be mett with carrying the same may be seized and that his Majesties Declaration Emitted of purpose in relation to other Nations should be considered as lex Belli and not a privat and unwarantable style of a commission given periculo petentis In this many Points being debated It was Found by the Lords that Tarr is Counterband 2. As to that Point whether a Ship having carried counterband Goods to Enemies may be seized upon in her return home-ward having sold and vented the same to the Enemies and not deprehended carrying the same They thought fit to know his Majesties pleasure and the custom of England and a Letter was writen to my Lord Secretary to that purpose 3. The Ship in question having carried counterband Goods to Holland and having thereafter made a Voyage to France and there having taking a new Loading of Salt upon the account of the Owners and being taken upon her comeing from France If it should be found that she might have been seized upon pretence that they had carried the said Goods to Holland It was Debated whether the Return should be understood of the immediat Voyage from Holland to France or until they should return to Sweden And as to this part the Lords thought good to take advice of Merchants In praesentia Lockhart Wedderburn alt Wallace vide feb 4. 1668. D. 133. Mckitrick contra _____ Eod. die THE Prescriptions of Reversions and Expiring of Legals and the taking advantage of the same are so odious That the Lords inclined to find that necessary Depursments upon reparation of Houses should not be allowed to a Compryser in a Declarator to hear and see it found that he was satisfied by intrommission reserving action to him for the same But before answer they ordained the Reporter to consider the Depursments and to Report whether they were absolutely necessary This is hard in the point of Law intromission being to be understood civiliter cum effectu of that which is free all charges deduced Hay Clerk D. 134. Trotter contra Trotter Eod. die THE Lords Found that a Wadsetter having comprised for his principal Sum may in competition with another Compryser pass from his Comprysing and return to his former Right of Wadset Gibson Clerk D. 135. Anderson dean of Guild of St. Andrews contra James Tarbat 16. January 1668. WIlliam Tarbat having granted Bond for 300 pounds to his Son James and other Children the said Bond was Reduced at the instance of a Creditor Because it was subscribed only by one Notar being a matter of importance Though it was alledged that it resolved in three several Bonds and it was Equivalent as if the three Bonds had been granted for 100 pounds respective For the Lords considered that the Bond being one and individual the importance as to the interest of the debitor is the same whether it be granted to one or to diverse Persons D. 136. Binnie contra Binnie 17. January 1668. MArgaret Binnie being induced to grant a Bond obliging her to resign some Tenements of Land in favours of herself and the Heirs of her Body which FailÈieing in favours of her Brother
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
for the Lady Lockhart and Lermonth D. 162. Lord Hattoun contra Paterson 22. Feb. 1672. THE Lords of Exchequer having given the Escheat of the Laird of Craigie Carnagie to Andrew Paterson and the Gift being assigned to the Laird of Aytoun by the said Andrew a decreet was thereupon obtained against the Representatives of the Earl of Dundie for his intromission with the Goods belonging to the Rebel whereupon Adjudication or Comprysing followed of the said Earls Estate in Argyle which was Disponed by the said Laird of Aytoun to the Earl of Argyle Thereafter my Lord Hattoun Thesaurer-depute having gotten a second Gift pursued the the said Andrew Paterson before the Exchequer upon that ground That by Acts of Exchequer it was ordained that no Gifts of Escheat should pass without Back-bonds and the Clerks are Discharged to give out the same otherwayes and nevertheless viis modis the said Andrew had surreptitiously gotten out the said Gift and ought to give a Bond that being satisfied of what he can pretend to be due to him by the Rebel and of the Expences in passing the Gift he should denude himself in favours of the second Donator And that it should be declared that the said Gift should be affected with the said Bond as if it had been given ab initio And accordingly the Exchequer did decern and declared Whereupon the Thesaurer deput pursued a Reduction of the said Apprysing against Aytoun and the Earl of Argyl upon that reason viz. That the said Gift which is the ground thereof is restricted and qualified and that the said Andrew Paterson is fully satisfied of what is due to him It was Alledged for the Defenders that the Gift was pure and simple without any Back-bond and therefor the Assigney finding it was such and there being no Back-bond upon record was in bona fide to take a Right to the same And the said Decreet of Exchequer being supervenient and res inter alios acta could not be obtruded against a singular Successor but the Pursuer may have action against the Cedent The Lords Repelled the Alledgnce and Found that the Decreet and Back-bond do qualifie the Gift both as to the Donator and to his Assigney The said Decision appears very hard upon the grounds abovementioned and because Back-bonds are only personal obligements upon the Granters and do not qualifie Rights being extra Corpus Juris And his Majestie in granting Gifts of Escheat single or Liferent is in no other case than other Superiors as Lords of Regality having Right to single Escheats whose Gifts cannot be qualified in prejudice of a singular Successor but by provisions contained in the Body of the Right and the import of Back-bonds is only that the Granters being satisfied should be comptable for the superplus but there is not thereby any tye upon them not to dispose upon the same being comptable for the pryce or value of that which they dispone Colingtoun Reporter Having heard the cause at the side Barr. D. 163. Blair contra Blair 23. Feb. 1672. WItnesses being examined before Answer ex Officio It was desired that seing ex facto oritur Jus and the Lords being unclear to decide in Jure before the point of fact were cleared by probation and the point of Law and ground of their Decision is to arise out of the probation and therefore they may see and debate upon the same which was refused seing publicatio Testimoniorum by our Law is allowed in no case but in Improbations ex quaestione falsi MckenÈie alteri Lockhart c. D. 164. Neilson contra Elizabeth Arthur Eod. die ELizabeth Arthur being charged upon a Bond granted by her self suspended upon that reason that she was cled with a Husband the time of the granting thereof It was Answered she had a peculium and Estate setled upon her by her Father in these Terms that her Husband should have no interest therein but that it should be manadged by advice of the Freinds named by him for the behoofe of her and her Children And that the Sum charged for was borrowed and employed for her use The Lords Found the Letters orderly proceeded D. 165. Lady Lugton contra Hepburn and Creichton 13. June 1672. A Decreet being recovered before the Commissars of Edinburgh at the instance of the Lady Lugtoun against her Grandchild _____ Hepburne Daughter to the deceast Laird of Aderstoun Modifying 400. Merks Yearly for Aliment of the said _____ Hepburne by the space of 13. Years since her Birth The Lords in a Reduction and Suspension of the said Decreet modified the Sum thereincontained being 3500 Merks to the Tenth part of the Sum of 30000 Merks which was mentioned in the said Decreet and considered by the Commissars as the Estate belonging to the said Hepburne So that in respect and upon supposition of the same they modified the said Aliment And by reason the said Estate was intricate and litigious and possibly could not be recovered The Lords ordained the Pursuer to Assign the Tenth part of the said Estate not exceeding 3000 Merks which was done upon that consideration that the Aliment was modified in respect of the said interest And if ex eventu it should be Found that it could not be recovered and that she had no Estate it were unjust that she should be Lyable personally her Grand-mother being obliged at least presumed to entertain her ex pietate materna if she had no Estate of her own Monro Clerk D. 166. Grott contra Sutherland 14. June 1672. TWo Owners of a Ship being obliged by a Contract to Transport Goods to a certain part The Lords sustained Action against one of them in solidum for implement of the Obligements in the Contract being facti which is indivisible and they being socii exercitores so that the Fraught might have been payed to one of them and eadem ratione any one of them is Lyable and may be pursued in solidum Gibson Clerk D. 167. _____ contra _____ eod die THE Lords Found That a Declarator of Right which ought to be upon 21 Dayes being priviledged by a Bill which is periculo petentis should not be sustained being execute upon a shorter time And Ordained that the Writers to the Signet should nor insert in Bills and Summonds a priviledge dispenceing with the Law and the solennes induciae thereby introduced in favours of Defenders under the paine of 100 Merks for the first fault and deprivation for the second except in cases which by the Law are priviledged and named The President Advocate and others of their number to meet and consider what these should be D. 168. Henderson contra Henderson 20. June 1672. A Bond being produced to satisfy the production in an Improbation The Lords without further probation did Improve and Decern quoad the Defender in respect he refused to abide by the Truth of the same Gibson Clerk D. 169. Gray of Haystoun contra Forbes and Lindsay eod die WIlliam Gray of Haystoun having granted
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
been called ab initio in that Process yet being called incidenter for proving of an Alledgance by the certification foresaid he became Partie therein And as when an incident Diligence is raised against a haver of Writes for proving of an Alledgance and the having thereof is referred to the Oath of the Defender in the incident if he be holden as confest tho the Alledgance be not proven the Pursuer of the Incident will have Execution against him as Haver and for the Damnage and Interest sustained through his Contumacy so it ought to be in this case The Lords Tho the Earl of Loudoun's presumptive Confession being holden as confest as said is be a convinceing evidence that the said Money was payed to him yet they had that respect to him both as to his quality and integrity that they would have Reponed him if he had compeared himself or had written to the Lords that he desired to be Reponed and did intimate alse much to his Procurators and to that effect did give some time but no Return being made they proceeded and sustained the pursuite at the instance of the Town of Edinburgh upon the medium foresaid Monro Clerk D. 218. Letter by the Lords of Session to the King 12. January 1675. MY Lord Lauderdale His Majesties Secretary having writen to the President concerning the abovementioned Process betwixt Captain Gordon and the Suedes anent the Ship called the Wine Grape That the Suedish Envoy had made Application to his Majesty and had represented That the Decreet against the Strangers was caryed but by two Votes and had given in a List to his Majesty of those that were for and against the said Decreet with diverse Reasons against the same It was thought fit that a Letter should be drawen to His Majesty containing the Grounds whereupon the said Decreet proceeded which being done by those who were appointed by the Lords some of the Lords did object against the same That they did mention the Lords indefinitly to have given the said Decreet Whereas His Majesty was informed of the contrary and the Information was true and therefore it was desired it should bear That upon the Votes of the major part which is usual in all Cases the Decreet was pronounced Specially seing the said Letter did containe the Grounds of and did assert the Justice of the said Decreet So that these who had voted against the same could not belye themselves and put under their hand the contrarie of what they had voted And albeit in all Judicatories even in Parliament what is done by the plurality doth overrule and conclude the Dissenters so as to submitt to the same Yet they are not obliged to maintain or assert the Justice of a Sentence and Act that they had been against in their Judgment and vote It was notwithstanding carryed by plurality That without the amendement foresaid the Letter should be subscribed by all the Lords the President having promised to write to my Lord Lauderdale what was truly res gesta when the said Decreet was given And upon that assureance some of the Lords declared when they subscribed that they subscribed not their oun sense but the sense of the Court And though they were concluded as said is yet they were not convinced D. 219. Glendyning contra the Earl of Nithsdale 13. January 1675. WIlliam Glendining having pursued the now Earl of Nithsdale as Heir to Robert the late Earl of Nithsdale his Father for fulfilling a Minute betwixt the said Robert Earl of Nithsdale and William Glendinning of Lagan from whom the Pursuer had Right and for payment of the half of the duty of the Lands of Douphingstoun conform to the said Minut and Litiscontestation was made in the cause and for proving the rent of the saids Lands of Douphinstoun It was craved that the Depositions of witnesses that had been adduced in the like process intented against the said Earl as representing his Father for implement of the said Minute should be received in this Process But the Lords having considered that the said Earl did not represent his Father active but was pursued only upon the passive Titles and that this process against the now Earl is not against him as representing the last Earl neither was it alledged that he represents him Therfor they Found that the said Depositions could not be repeated in this process Seing res was inter alios acta and acta in uno judicio non probant in alio nisi inter easdem personas or these who represent him D. 220. Edmiston contra Mr. John Preston eod die WAuchope of Edmiston and his Lady as Executors to the deceast James Raith of Edmiston pursued Mr. John Preston lately of Haltrie Advocate for payment of the Tack duty for a Seam of Coal belonging to Edmiston and set to him for certain Years It was alledged for the Defender That he ought not to be lyable for the Years in question because having entered to the Possession of the said Coal and having payed the Duty for the time he possessed he was forced to cease from working in respect the said Coal came to be in that condition that it could not be wrought partly by reason of the defect of Roof so that the CoalÈiers neither would nor could work without hazard and partly by reason of bad Air It was Replyed That the Defender having accepted a Tack of a Subject lyable to such hazards eo ipso he had taken his hazard and was in the case as if he had acquired a Right to jactus retis It was Duplyed That alea and jactus retis and spes in venditione may be and is understood to be sold but in Locatione spes and alea is not thought to be set unless it appear by the Contract that the Conductor should take the hazard seing it is de natura of Contracts of Location that fruitio is understood to be given and set and that merces should be payed ex fructibus And where the Conductor cannot frui upon occasion of an insuperable impediment which does not arise either from his dole or culpa or negligence as in this case remittitur merces as is clear not only when the thing that is set is a subject not lyable to so much hazard but when it is contingent as when Gabells or Custums are set or Fishings or Milns or Coals if there fall out such an impediment as doth interrupt the fruition and perceptionem fructuum as if there be Pest and War in the case of Custums or if Herring should not be got at all or if upon occasion of inundation Milns should be unprofitable or Coal-heughs should be drowned or burnt The Lords before Answer Thought fit that there should be conjunct Probation allowed to both Parties anent the condition of the Coal and the Defenders desisting and ceasing from working thereof and the Occasion of his desisting and if the impediment was insuperable Craigy Reporter D. 221. eod die APPlication being made to the Lords
same simpliciter and tho such a Qualification may be allowed to Strangers and singular Successors who may be in bona fide to take Assignations to Writs Yet Wives and conjunct Persons and Relations are in a different condition seing they are presumed not to be ignorant of the Deeds and Transactions of their Husbands and Relations Newbyth Reporter Monro Clerk D. 266. Thomson and Halyburton contra Ogilvie and Watson eod die DAvid Thomson having by his Testament nominate his Wife Executrix and Tutrix and having left a Legacy to his Son of 5000. lib. and having ordained his Relict to employ the same upon Annualrent in sua far as he ordained him to be educate upon the Annualrent of the same In a Pursute for the said Legacy and the Annualrent of the same It was Alledged That the Executrix could not be lyable for Annualrent And It being Replyed That she was also Tutrix and Tutors are lyable after the first Term that they embrace the Office for Annualrent of the Pupils Means and that having confirmed the Testament by the Nomination foresaid of her to be Tutrix she hath accepted the Office of Tutorie And the Point at Interloquitor being whether by confirming of the Testament she had accepted of the Office of Tutorie Some of the Lords viz. _____ Were of the Opinion That by Confirming of the Testament she did not accept of the Office But it was Found by the Lords That having confirmed without Protestation that she did not accept of the Office eo ipso she did accept of the same And tho she had emitted such a Protestation it could not be allowed seing she was not only named Executrix but had a Legacy left her and she could not accept the Office of Executry and Legacy foresaid and repudiate the Office of Tutory of her own Child The Lords in the Case foresaid Thought That if the Relict were able to make appear That having used all possible diligence she had not recovered Payment of the Defuncts Means she could not be lyable for Annualrent but from the time that she recovered the same Castlenil Reporter Monro Clerk D. 267. Gray contra Cockburn eod die THE Lords Found In the Case betwixt the Laird of Cockburn and Mr William Gray Minister at Duns That Cockburn being lyable to pay certain Bolls of Victual betwixt Yule and Candlemass might have payed the same upon Candlemass day and that as he might have payed the same he might have made offer thereof but that in all cases of that nature Persons who are lyable and do make such Offers are not thereby liberate as to the greatest Pryces unless the Partie be in mora to receive the Victual either the time of the offer or six days thereafter Castlehil Reporter Monro Clerk D. 268. Heckford contra Ker. 17 June 1675. MR. Hugh Ker having granted Bond to _____ Heckfords for the Sum of 1000. merks and being obliged thereby to pay the said Sum with Annualrent at Martimass thereafter and for the Creditors surety having wadset by the said Bond ten rudes of Land to be possest for the annualrent of the said Sum so long as the samen should remaine unpayed The Representatives of the said Mr. Hugh were pursued for 6 lib. as the inlake whereof the Rent of the Land did come short of the Annualrent of the said Sum and for publict burdens who did alleadge that the said Right being a proper wadset and the saids Lands being possest by the Creditor the Debitor was not lyable neither for Annualrent nor Publick Burdens The Lords Found That the Bond being of the Nature foresaid and containing a proper Wadset so that if the Duties of the Lands had exceeded the Annualrent the superplus would have belonged to the Creditor entirely and not been imputed in payment of the Principal the Debitor was not lyable either for inlake or publick Burdens And tho in the beginning of the Bond the Debitor was obliged to pay Annualrent yet the payment of the same was qualified and to be understood according to the whole Tract of the Bond viz. That the Duties should be allowed for payment of the Annualrent and that the Creditor should possess and have the use and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Land and Rents thereof for his Annualrent which is clearly a proper Wadset Newbyth Reporter Mr. John Hay Clerk D. 269. Colledge of Aberdeen contra The Town of Aberdeen eod die DOctor Reid having by his Testament left his Books to the Colledge of Aberdeen to be kept by a Bibliothecare and having left for a Patrimony and Sallary to the Bibliothecare the Sum of 6000 Merks and having named Mr. Robert Dounie his own Relation to be Bibliothecare and in case of his refuseal having appointed another to be chosen by the Colledge And the Master of the Grammer School Mr. Robert Paterson being presented to the said Office by the Colldge pursued a Declarator to hear and see it Found and Declared that he has Right to the said Office and Sallary It was Alledged for the Town of Aberdeen That no Title was produced for the Pursuer but the Extract of Doctor Reid's Testament bearing the said Mortification which could not be respected seing the said Extract is out of the Books of the Commissars of Aberdeen and his Testament could not be confirmed but by the Commissars of Edinburgh he having died out of the Country and therefore the said Extract could not be considered but as a Copy and the principal ought to be produced And it appears that there was never any Principal bearing the Masters of the Colledge to have the Election of the Bibliothecare seing the Town of Aberdeen has been in use since the Mortification to present to the said Office and by a Contract in anno 1632. betwixt the said Mr. Dounie and the Town he is presented to the said Office by the Town to which Doctor Dun the Principal of the Colledge was Witness and the Executors nominate likeways Witnesses The Lords Found There was no necessity to produce the Principal the Extract being a sufficient Title and as to the pretended Nullity it was not Juris seing non constat that Doctor Reid died out of the Coutry And if there were any Ground upon the pretence foresaid it were only of a Reduction It was Found also That by the said Testament the Nomination of the Bibliothecare did belong to the Colledge and the possession of the Town without a Right cannot Found a Defence in petitorio and the Deed and Contract with Dounie and the Subscription of the Principal and of the Executors of Doctor Reid as Witnesses could not prejudge the Colledge The Lords having considered the Tenor of the Mortification which gives Power to the Colledge to Name in case of Refusal of Dounie Found nevertheless that the said Interest to Name and choose a Bibliothecare was not temporary and prima vice Seing Wills of Defuncts were to be interpret benignly Especially in favours of Colledges and there can be no
when he was in liege poustie and had power as Dominus to dispose of his Goods or to grant Bonds which might affect the same The Relict could have no Legitime but of the free Gear the said Bond and other Debts being satisfied Some of the Lords were of the Opinion that the Bond should affect the haill Goods But others thought that it ought to affect only the Defuncts part seing there is a Commumon betwixt Husband and Wife and albeit the Husband is said to be Dominus and has full Administration of the same so that he may dispose thereof and grant Bonds for Onerous Causes yet he cannot in prejudice of the Communion and the Wifes Interest foresaid dissipate and give away the same by fraudulent Donations of purpose to prejudge either the Relict or the Children of their Legitime But this point was thought fit to be heard and debated in praesentia D. 303. Forbes of Colloden contra Ross and others 26. November 1675. A Decreet at the instance of Forbes of Colloden against Robert Ross and others before the Commissar of Ross being questioned upon that Ground that the said Commissar had committed Iniquity in Repelling Relevant Declinatures whereof one was upon the account of his Relation to the Pursuer being the Commissars Uncle And an other was upon account of the nature of the Action Alledged not to be consistorial and the subject of the Process tho it had being proper otherwayes yet being far above the Sum of 200 Merks was such as by the Regulation the Commissar could not be Judge in And likewayes in resâ—ect that the Commissar did assume to himself a Power to modify a great Sum extending to above 6000. lib. for the Charges the Pursuer had been at in proâ—ecuting a Plea by warrand of the Defenders and wherein he and they were concerned And the said Modification was upon no other Probation but the Pursuers Oath and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative Some of the Lords were of the Opinion That the Commissar notwithstanding of the Relation foresaid could not be declined seing there is no statute that Judges may be declined upon that account And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session There is no other Relation that can be a Ground of Declinator but where the Judge is related to either of the Parties as Father Brother or Son And yet others were of the Opinion that a Nevoy being of so near Relation may and ought to be declined In respect by the Common Law persons of that Relation are most suspect and cannot be Judges And by the said Law a Judge may be declined upon any Ground that may decline a Witness and there is more reason to decline Judges than Witnesses seing there may be penury of Witnesses and they may be so necessary tho related to the Parties that others cannot be Found And the said Act of Parliament as all Acts of Parliament especially such as are correctory Juris communis ought to be taken strictly and cannot militate but in the case therinintended and exprest And the said Act is upon special considerations in Relation to the Lords of Session and particularly of the Eminent Integrity that is presumed and ought to be in the Supreme Judicatory The Lords without entering upon the Debate of the said other points turned the Dcereet in a Lybel Forret Reporter Clerk D. 304. Anderson of Dowhill contra Lowes 27. November 1675. William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers Daughter certain Aikers near Glasgow which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill But John Lowes having thereafter Marryed the said William Norvels Relict Elisabeth Gibson and having upon an Assignation to a Debt of the said William Gibson adjudged the said Williams Right from his Appearand Heir And having pursued an Improbation and Reduction of Dowhills Right and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel Dowhill was forced to pursue forproving the Tenor of the said Disposition which was out of the way and which he pretended to have been in the Hands of the said Elizabeth Gibson and to have been abstracted by the said John Lowes her second Husband intending to patch up the Right foresaid And these Adminicles bein Lybelled viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow for Exhibition of that Disposition the said Elizabeth for obtaining a Suspension of the Decreet of Exhibition recovered against her did consign in the hands of Henry Hope the said Disposition and other Writes and that thereafter the said Thomas Norvel upon the said Disposition did obtain a Decreet cognitionis causa before the Baillies of Glasgow In which the said Disposition is mentioned as produced And thereafter the said Thomas did also obtain an Adjudication of the said Aikers wherein also the same was produced And that there is an attested double of the said Disposition which is written by James Galbraith Agent and attested by two famous Notars The Lords admitted the Summonds to Probation And diverse Witnesses being Examined and in special the said James Galbraith and these who were Servants to the Clerk of the Court of Glasgow the time of the obtaining of the said Decreets Cognitionis causa Adjudication and others After much debate before advising in praesentia and amongst the Lords themselves Some of the Lords were of Opinion that pursuites of the nature foresaid being of so great importance and tending to make up a Right to Lands which may be of great value The Adminicles ought to be in Write and most pregnant and that in this case tho there might be ground of presumption yet it cannot be said that there are clear Adminicles in Write In sua far as the attested double cannot be considered as an Authentick Write and it wants a date And as to the Decreet of Adjudication tho it mention the production of the Letters of Disposition yet it appears by the Depositions of the Witnesses and it was granted at the Barr that the principal Disposition was not produced but only an attested Double and needed not to be produced the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication And as to the Decreet Cognitionis causa that it is not a sufficient Adminicle seing both it and the Decreet of Adjudication bearing the Production in the same Terms there might have been the same mistake in the Decreet Cognitionis causa that is confest to have been in the Adjudication viz. That the Attested double being only produced yet the Production is made to bear the Disposition and there being so short a time
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâ—on that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
is both Heir of Line and Heir of Provision And if need bees the Relict and Children as Creditors by the said Provision contained in the Contract of Marriage and in the Testament may get Decrees against him as charged to enter Heir of Provision and if he renounce may adjudge the 30000 lib. provided to the Heirs of the Marriage Actor Sinclair alteri McKenÈe and Zeaman Gibson Clerk In praesentia D. 354. Irving contra Forbes 8. June 1676. IN the case Irving contra Forbes It was debated among the Lords whether a person should be Lyable as vitious Intrometter notwithstanding that it was Replyed that he was confirmed Executor And Answered That as to Superintromission beyond what was confirmed he was Lyable as Intrometter It was asserted by the President and some others That it was the custom and daily practique That notwithstanding of Superintromission even before the Confirmation the Executors ought not to be Lyable but secundum vires and that a Dative ad omissa may be taken yet others were positive of the Opinion that a Person Intrometting with more nor is confirmed was Lyable as vitious Intrometter Seing it could not be denyed but he was Intrometter and he could not plead nor pretend to be Executor as to what was not confirmed and if there were no Confirmation he would without question be lyable as Intrometter and the Confirmation ought not to put him in better case seing notwithstanding of the same as to Superintromission he is not only Intrometter without warrand and so vitious but is perjured having made Faith the time of the Confirmation that nothing was omitted And it is hard that a custom contrare to the Principles of Law and to the Opinion of Hope and other Lawyers should be obtruded unless upon a Debate in praesentia there be a Decision which may be the Foundation of a Custom D. 355. Burnet contra Gib 9. June 1676. THE Lords in a SpuilÈie of Teinds Pursued at the instance of Alexander Burnet contra William Gib Found That the Defender or his Author having enclosed a peice of Marish Ground to be a Yard and having made no other use of the same since but for Carrets and Roots he was not Lyable to the Bishop Titular or his Tacksman of the Parsonage Teinds for payment either of the value of the Parsonage Teind or for the Viccarage Teind which was found by plurality of one or two Voices These that were for the Decision did found their Opinion upon these Grounds viz. 1. That the Heretor potest uti Jure suo and that the Titular has no tye nor Servitude upon him but he may either Labour or not his own Ground If he do it not in fraudem or aemulationem of purpose to prejudge the Titular 2. That the Defender in order to his own Interest having thought fit to enclose his Ground and to make use of it for Carrets and Roots for which by the custom of the Country Teind is not due neither to Parson nor Viccar the Defender is not Lyable for Teind Seing Viccarage Teind and the payment of it is regulate according to Custom It was urged by the Lords that were of an other Opinion That the Titular of the Teinds had an interesse partiarium as to Teinds so that albeit the Heretor may uti Jure suo it is to be understood that he should use the same sine injuria without prejudice of the Titular And if of purpose to prejudge the Titular he should not Labour but suffer his Lands to ly waste he will be Lyable to the Titular for the value of the Teind that was formerly payable or might have been gotten As was Found in the case of the Laird of Polwart against the Minister of Polwart For If he should inclose all or a considerable part of his Ground that was arable Land and whereof the Teind was either payed to or led by the Titular it were hard that it should be in his Power to prejudge the Parson to the advantage of the Viccar But in that case the small Teinds would be considered as great and parsonage Teinds quia surrogatum sapit naturam surrogati And far less it ought to be in the Power of an Heretor to prejudge altogether the Titular or the Minister who is provided out of the Teinds as in the case in question by encloseing Ground formerly arable and making that use of it that neither the Titular nor Parson can have any benefite of Teind It being unjust that the Titular should be prejudged and that the Heretor should advantage himself and by his own Deed should free himself of Teind And albeit by the custom in some places Teind is not payed for Carrets and Roots in Yards the same being looked upon as inconsiderable and the Bounds where the same are Sowen or planted being small parcels of Ground for the private use of the Heretors own Family yet when a considerable Tract of Ground is enclosed and parked so that the Heretor has the same if not more profite than he has of his other Laboured Ground by selling the Roots and Fruits of the same as about Edinburgh or other great Cities where great parcels of Corn-Land are taken in and enclosed to the use foresaid as by the Common Law Teind is payable even for such Fruits and Profits So by our Law the Titular ought not to be prejudged And the custom that Teind is not payable for Roots and such like ought to be understood of such as grow in Yeards about Houses as said is for the proper and domestick use of Heretor or Tennent but not where a great parcel of Ground is taken in and destinate for profite and advantage by Soweing or Setting and Selling Herbs and Roots D. 356. Nairn contra Scrymger 13. June 1676. IN a Suspension at the instance of a Person who had bought Lands upon that Reason that the Seller who charged for the Price was obliged by the Contract to give him a perfect Progress and that the Progress exhibited to him was defective In swa far as the Lands did hold of the Bishop and the Original Right was not produced but only a Charter of Confirmation in Anno 1611 and the Charter confirmed was not produced and the Progress since the Charter of Confirmation was but late and some of the Charters had no Seasin following upon the same and some Seasins wanted the Warrand of Charters and Precepts And albeit it was alledged that the Charters would be found Registrate in the Bishops Register that defect was not supplyed thereby seing the Bishops Register was not Authentick and ought to have no other respect than a Register of any other Lord or Baron of the Writes granted by them The Lords Found That tho much may be said upon the Progress foresaid to defend against any Person that will pretend Right to the Lands and to found Prescription upon them A Buyer nevertheless was not Obliged to accept and acquiesce to the same as a sufficient Progress
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour