THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with ãâ¦ã It hath been looked upon as the priviledge of Judgesâ to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâeth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
hundred merks toties quoties to be applyed for the use of the Poor It is alwayes hereby declared That the Verbal Information of any Party or other Person for him when required or allowed Judicially or before Auditors in Diets appointed for both Parties to be heard or before the Ordinaries upon the Bills in relation to the passing of Bills of Suspension or Advocation or before any of the Lords to whom either by consent of Parties or by appointment or Recommendation of the Lords an Accommodation in any Process is referred is no wayes hereby Prohibited And to the effect the Leidges may be secured against any prejudice which they may apprehend by debarring them from Sollicitation or Verbal Information the Lords do declare that there shall be free access for all Persons to Inform them by Written Informations only to be delivered by Servants and that in all Cases from time to time and for the more sure delivery of Informations they ordain that every one of the Lords shall have a Servant attending in his House fromâ five a Clock to eight a Clock at night who shall be holden to receive any Informations doubles of Bills or Tickets for Calling that shall be given in without payment of any Money under such pain or punishment as the Lords shall think fit And which Informations Bills or Tickets shall be delivered by the Servants of Advocats or of the Parties and by none others And Ordain this Act to be affixed on the Wall of the Outter-House And to be Printed that none may pretend ignorance thereof ACT concerning Bills relating to concluded Causes November 9. 1677. THE Lords considering that sometimes after concluded Causes are Advised and Sentences pronounced therein Parties endeavour to delay the Extracting thereof for a considerable time and then do offer Petitions for alteration of the Decreet whereby the Process not being recent in the Memory of the Lords they are put of new to peruse the Process and Probation For remeidâ whereof the Lords Declare that in timecoming they will not receive any Petitions in relation to the Stopping or altering of any Decreet or Interlocutor pronouncing upon Advising of concluded Causes unless the Petition be given in within the space of two Sederunt dayes after pronouncing of the Decreet or Interlocutor Suspensions of the Excise to be past only in presentia December 6. 1677. THE which day the Lords Ordained that no Suspension shall be past of any Charges given for His Majesties Annuity or Excise except in presence of the whole Lords Warrant anent Precepts for giving Seasine upon Retours February 15. 1678. THE which day the Lords Ordained that Bills craving Warrant to the Director of the Chancellory to direct Precepts to a Sheriff in that part to grant Infeftement upon Retours in respect of the Sheriffs refusal to Infeft the Party shall not be past in time coming by the Ordinary upon the Bills but the same shall be past by the whole Lords in presentia and the Lords discharge the Director of the Chancellory to direct or give out any Precepts to Sheriffs in that part for granting Infeftment upon Retours unless the Warrant be past in presentia as said is ACT in Favours of the Lord Register February 22. 1678. THE which day the Lords considering that the Kings Majesty hath nominated and appointed Sir Thomas Murray of Glendook one of their number to be Clerk of Register with power to him to receive all the Profites of the Office since the advancement of Sir Archibald Primerose to be Justice-General and he being accordingly admitted to the said Office Therefore the Lords do grant Warrant to the Lords Newtoun and Hercus to take the Oaths of these Persons who by their Warrant were intrusted with the keeping of the publick Registers which were in the Custody of the late Clerk of Register if they have abstracted or imbazeled any of the said Register Books or Warrants or if they be all intire and in the same order as they are set down in the Inventar insert in the Books of Sederunt And ordain the Keys of the Rooms wherein these Registers are viz. that below the Parliament-House and of the Chamber in the Castle of Edinburgh to be delivered to the said Lord Register And grants Warrant and Order to Mr. Alexander Gibson one of the Clerks of Session to make Compt and Payment to the said Lord Register of the Dues of the Clerk of Registers Office which he has intrometted with by Warrand of the Lords and declare that this Act with the said Lord Register his receipt shall be a sufficient Exoneration to the said Mr. Alexander Gibson thereof ACT Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. THE Lords considering the abuse committed by giving out of Processes to some Persons attending the House and pretending to Negotiat in and mannage Processes who are neither Advocats nor Servants to Advocats For remeid whereof the saids Lords Discharge the Clerks of Session and their Servants to give up or lend out to any Persons any Processes or Writes produced therein except only to Advocats and their known Servants And the Lords Declare that each Advocat shall be allowed to have one Servant and if any shall desire to have more Servants allowed to them then one appoint them to represent the same to the Lords and they will take it unto their Consideration ACT prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords Iuly 23. 1678. THE which day the Lords did Discharge the Clerks to give up to Parties any Bills or Petitions whereupon there are Deliverances relateing to Interlocutors or Decreets in Processes except where the same are appointed to be seen and Answered And appoint the Clerks to keep the foresaid principal Petitions bearing Deliverances of the Lords and to give out to parties only doubles thereof ACT Discharging Advocats and Writers Servants to Write their Masters Subscription Iuly last 1678. THE which day the Lords Considering that there is a corrupt Custom lately crept in of Advocats and Writers Servants adhibiting their Masters Subscriptions to Petitions and Bills given in to the Lords which is not to be endured Therefore the Lords declare that if in time coming the Servant of any Advocat shall presume to Adhibite and Write his Masters Subscription to a Petition or to the out-giving or return of a Process or if the Servant of any Writer to the Signet shall Adhibite his Masters Subscription to a Bill of Suspension or other Bill used to be drawn by Writers that they will proceed against and punish these Persons as falsaries and forgers of Writes ACT Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers Ianuary 3. 1679. THE which day the Lord Register Newtoun and Hercus did make Report to the Lords that conform to the Warrand given them of the fourth of December last they had considered the condition of
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumââmond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâe there was but few Anni utilesâ in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the Common-Law and Feudal Custom which by the Act it self appears then to have been constant and is only altered by the Statute upon the presumption of Fraud which is clear both by the Title against double Fraudful alienations and by the Narrative that diverse persons after they have given privat State and Seasine to their Bairns or Friends do thereafter give for Causes onerous Infeftment to other persons and therefore such onerous posterior Infeftments if they attain Possession year and day are preferred to the said privat Infeftments but in this Case there is no Presumption of Simulation 2dly By several Decisions alleadged and produced it is clear that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie which interveened before the next Term so that the Infeftment of Annualrent could not attain Possession but if base Infeftments without Possession were unvalid Rights The Lords could not have found so 3dly The Lords have allowed Indirect and Interpretative Possession to be sufficient not only in the Case when Liferents are reserved that thereby the Liferenters Possession is the Feears though he never possest himself but even when Liferents are not reserved but that the base Infeftment is thereby excluded from Possession so base Infeftments granted to wyfes are preferred to posterior publick Infeftments though the Wyfes do not nor cannot possesse during the Husbands Life yet the Husbands possession is counted the Wifes possession and if a Person Infeft by a base Infeftment should pursue for Mails or Duties or Removing and were excluded by a prior Liferent constitute by the Pursuers Authorâ though not reserved in his Right that very Action would be sufficient to validat the base Infeftment without Possession 4thly Whatever might have been alleadged before the Act of Parliament 1617. For
Pursuite Marjory Murray contra Isobel Murray Eodem die UMquhil Murray having Infeft Isobel Murray his Wife in two Tenements did thereafter by his Testament leave a Legacy of a thousand pounds to their Daughter Marjory Murray and gave other Provisions to the said Isobel his Wife and provided his Daughter to the two Tenements Which Testament his Wife Subscribes and after his Death Confirms the same but under Protestation that her Confirmation should not prejudge her own Right The Daughter pursues for the Legacy of 1000. pounds and for the Rents of the Tenements and alleadges that the 1000. pounds must be free to her without being abated by Implement of the Mothers Contract And likewise the two Tenements by her Mothers consent and subscription It was answered that the Mothers subscription was a Donation betwixt Man and Wife for being to the Mans Daughter whom by the Law of Nature he is obliged to provide it was all one as if it had been to himself 2dly her Subscription was obtained in luctu her Husband being near his Death and at his desire ex revèrentia maritali and the Confirmation can be no Homologation because of the Protestation foresaid It was answered that it was protestatio contraria facto and the Wife had no necessity to do it for she might have Confirmed her self Executrix Creditrix The Lords found that there was here no Donation between Man and Wife but in respect the Parties had not Debated the effect of reverentia maritalis ordained them to be heard thereupon and found the Protestation sufficient to take off the Ratification or Homologation by the Confirmation and found the Legacy of 1000. pounds to be left only according to the nature of a Legacy out of the Defuncts free Goods and would not exclude the Relict or any Creditor Sir David Dumbar of Baldune contra Sir Robert Maxwel Iuly 14. 1671. SIr David Dumbar of Baldune being Infeft upon several Appryzings in the Estate of Kirkcudbright pursues Reduction and Improbation against Sir Robert Maxwel of Orchartoun of all Rights of the said Estate granted by Baldune himself or by umquhil Iohn Lord Kirkcudbright or Thomas Lord Kirkcudbright or any of their Predecessours to whom they may Succeed jure sanguinâs to the Defender It was alleadged no Certification of any Writs made by the Predecessours of Iohn or Thomas Lords Kirkcudbright to whom they might succeed jure sanguinis because that can be no active Title to the Pursuer for if Iohn Lord Kirkcudbright himself were pursuing a Reduction he would not have a sufficient active Title to Reduce the Writs made by any Person to whom he was appearand Heir unless he had been actually Heir So neither can the Pursuer his Appryzer have further interest then Lord Iohn himself for albeit the Clause is Relevant passive against the Defenders to produce all Writs made to them or to their Predecessours to whom they may succeed jure sanguinis because Reductions and Declarators are Competent against appearand Heirs without any Charge to Enter Heir Yet they are not competent to appearand Heirs till they be actually Entered It was answered that the Pursuer being publickly Infeft has good interest to call for all Writs that may burden the Land to the effect he may improve the same as an impediment hindering his Infeftment But specially an Appryzer who has not his Authors Rights and that this has been always the stile of the general Clause in Improbations The Lords found the Defense Relevant and would grant Certification against no Writs but such as were granted by person whose Infeftments and Retours should be produced before Extract The Defender further alleadged no Certification against any Rights made by Thomas or Iohn Lords Kirkcudbright to the Defender because no person was called to Represent them Whereas it is known that George Lord Iohn's Nevoy is both appearand Heir-male and of Line and that this has been the common Defense always Sustained The Pursuer answered that the only ground of this Defense is when Defenders have Warrandice from their Authors and therefore the Pursuer ought to call their Authors that their Rights inâerring Warrandice upon them may not be Reduced they not being heard But here the Defender produces no Right from Lord Iohn or Lord Thomas and so the alleadgeance is not Relevant against the Production but only in case such Rights be produced it will be Relevant when the Pursuer insists to Reduce the Writs produced The Lords Repelled the Defense and reserved the same if any Right should be produced by the Defender bearing Warrandice Laird of Milntoun contra Lady Milntoun Eodem die THe Laird of Milntoun having insisted in an Improbature against the Lady Milntoun for annulling a Decreet of Divorce obtained at her instance against Iohn Maxwel her Husband the Relevancy whereof was Discust upon the 31. day of Ianuary 1671. and only the manner of Probation of the Corruption of Witnesses by prompting them how to Depone or by promising or giving them Bribes or any good Deed to Depone more than their ordinar Charges remained undiscust It was alleadged that such Reprobators were only probable by Writ or Oath of the Party adducer of the Witnesses post sententiam latam for Reprobators upon Corruption albeit they might be proven before Sentence by Witnesses above exception as to giving of Bribes which was a palpable Fact yet not then by prompting or promising or any words emitted which are only probable by the Witnesses adduced or by the Oath of the Adducer Neither in that case if the Witnesses adduced be above all exception can Witnesses be adduced against them but only their own Oath or Oath of the Party So that any Party that quarrels VVitnesses by Reprobators ought to do the same after they are adduced and before Sentence but if Sentence be once pronunced and Extracted it is res judicata quaepro veritate habetur And if Reprobators upon corruption be used after the Sentence upon Corruption the same can only be probable by the Oath of the Adducer And neither by the Oath of the VVitnesses adduced who cannot annull their own Testimony post jus quaesitum parti nor by other VVitnesses and if it were otherwise the greatest inconveniencies would follow for then the Sentence and Securities of the people founded thereon might for fourty years space be quarrelled upon pretence of corruption and singular Successors acquiring bona fide might be outed of their Rights As also there shall be no Termination of Process for as the first Sentence may be Canvelled by Reprobators against the Testimonies whereupon it proceeded so may the second be Canvelled in the same manner by a second Reprobator and so without end And seing the Law of this Kingdom hath been so jealous of Probation by Witnesses that it hath not allowed sums above 100. pounds to be proven thereby So Witnesses should not be admitted in Reprobators especially after Sentence It was answered that Reprobators being a necessar remeed against the
the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâeat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. âf March 1681. yearâ at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâs June 22. 1665. Act anent Proâtutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
confusion the last day of the Session February 21. 1663. THE Lords of Council and Session considering how necessary it is for the advancement and honour of His Majesties service that the Judicatories intrusted in him in the principal administration of Justice to His People be attended in all their meetings with due Decencie and Respect from all His good Subjects And that the rude disorderly and barbarous carriage of some Servants attending the Colledge of Justice and others joyning with them upon the last day of the Session is dishonourable to the Authority of the Court unsuitable to the gravity becoming the Persons relating thereto and un-beseeming the civility fit for such a place have therefore thought fit to discharge and hereby discharges all Servants of any Advocats Clerks Writers or other members of the Colledge of Justice and all other Persons whatsoever That none presume upon the last day of the Session to throw or cast any pocks dust sand or stones or to make any disorder or to use any rude or uncivil carriage within the Session House or in the Parliament Closs Certifying all such who being Servants to any Members or relating to the House shall in any degree offend herein they shall suffer three moneths imprisonment and for ever thereafter be debarred the House and service thereof And if they shall happen to escape the time of the committing the offence That their Masters shall be oblidged to enter them in prison in the Tolbooth of Edinburgh within eight days thereafter under the pain of two hundred merks Scots and ceritfying all such Persons who not relating to the House as said is shall offer to offend in manner foresaid They shall be apprehended and committed to waird for the space of three moneths and thereafter banished the Town And that none pretend ignorance ordains these presents to be printed and affixed upon the most patent doors of the Session House and to be insert in the Books of Sederunt therein to remain ad futuram rei memoriam ACT in favours of the keeper of the Minut Book Iune 6. 1663. THE which day the Lords taking to their consideration an overture formerly presented to them be the Advocats in favours of Iohn Scot keeper of the Minut Book shewing that the allowance appointed to him for inrolling of Causes by the Act of Sederunt dated the 28. of February 1662. is very inconsiderable being only two shilling scots for every Process and no ways answerable to his pains and attendance thereupon In respect whereof and for the said Iohn Scot his further incouragement to continue that faithfulnesse and integrity whereof he hath hitherto given proof in discharging the said trust The Lords ordain in time coming the Parties at whose desires any Process shall be inrolled or his Agent to pay to the said Iohn Scot for every Cause that shall be inrolled be him four shilling Scots money allanerly And ordains these presents to be publickly intimate and an Act to be extended thereupon ACT concerning the buying of the Citiedeal September 8. 1663. THE Lord President having produced before the Lords a proposition made by the Town Council of Edinburgh and subscribed by Sir Andrew Ramsay Provost of the said Burgh bearing as follows viz. The Lord Provost having reported to the Committee That the Citiedeal of Leith being of late erected in a Burgh of Regality which without doubt may in time prove prejudicial to this City for many undenyable reasons And that the Honourable Lord the Earl of Lauderdail to whom His Majesty hath granted the Right of the said Citiedeal had done the honour and favour to the Council of Edinburgh as to make them an offer thereof upon reasonable terms And that they are come that length in their Treaty as that it may be had for 6000 lib. Sterling payable in four years which the Magistrats are not at all in capacity to raise or make payment of without the two third parts thereof be raised out of the Chamber of Imposition which the Council thought not fit to do without the consent of the Grand Committee of the said Imposition And therefore desired the advice of the Lord President and all others the Members of the Committee To which report and proposition the said Lord President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay made answer That they found His Majestie 's gift so strick as they could not of themselves without consent of the whole Colledge of Justice give consent That any of the said moyeties should be imployed otherwise then to the payment of debts contracted before September 1650. Therefore the Committee thought expedient That the President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay might advise concerning that scruple and with all conveniency report that so necessary a bargain might be brought to some conclusion The saids Lords having considered the above-written proposition in one voice do consent and give advice that the two third parts of the pryce of the Citie-deal be raised forth of the Chamber of Imposition The Seall of Court November 26. 1663. MR. Alexander Gibson produced in presence of the Lords their common Seal wherewith Commissions and other Papers which went out of the Countrey use to be Sealled which Seal the Lords ordain to be made use of in time coming And ordained the said Mr. Alexander to make the same forth-coming to the saids Lords when ever it should be required And ordains him to give the use of the said Seal to the remanent Clerks when they have to do therewith ACT against general Letters Iune 8. 1665. THE Lords considering the manyfold inconveniences arising of late from the frequent use of directing General Letters and Charges Summarly and that the same is contrary to the ancient custom whereby they were only raised upon Decreets conform Therefore the Lords do hereby revive and renew that ancient custom And Enact and ordain that in time coming no Charges nor Letters of Horning shall be direct Generally against all and sundrie except allanerly upon Decreets conform purchast and obtained be the Parties raisers of the saids Letters And prohibit and discharge the Writers to the Signet and the Clerks to the Bills to writ present or passe any Bills for General Letters and the keeper of the signet to affix the signet to any such General Letters unless the same be direct upon Decreets conform as said is Likeas the Lords declare any such General Letters that shall be raised in time coming where Decreets conform have not proceeded with all execution following thereupon to be void and null and have no affect But prejudice always of any General Letters or Charges raised or to be raised at the instance of His Majesty's Thesaurer Thesaurer Depute or others impowered for His Majesti's Rents Customs Casualities or other dues belonging to the KING'S Majesty according as they have been in use to do And also excepting any General Letters raised or to be raised at the instance of the Lords of Session for the
ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâcie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâerewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ and Councilers Right trusty and well-beloved Councilârs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defârence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and âear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâeired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâphingstâââ of Cardoââ The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâe sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bârgh and Burrow-lands with common Pasturage in Montkaplâch and offered them to prove the Moss contraverted was a part of Montkaâloch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad âviles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fântrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâromet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâke of Hamiltoun having obtained Charter of the Lands of innerw âik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâil and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâcher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâd that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuârs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pârties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
constant custome the entertainment of the Defuncts Families was ever a burthen on their Moveables and upon their Executry The Pursuer answered though it was ordinarly retained off the Moveables yet the Heir was also lyable seing the Defunct was oblieged to entertain his Servants and Children at least to a Term but much more when there were no Moveables or where the Defunct was Rebel and the Donatar intrometted The Defender answered that it was novum to conveen an Heir on this ground and that the Alledgiance of there being no Moveables held not here neither is it relevant that the Moveables were gifted unless it had been declared before the Defunct's Death and Possession obtained otherwayes the Relict ought to have Alimented the Family out of the Moveables which would have liberat her from the Donatar and is yet ground against the Donatars The Pursuer answered she could not retain because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables The Lords having amongst themselves considered this Process did put difference between the Aliment of the Appearant Heir and the rest of the Family As to the Heir they found that albeit he was never Infeft yet as Appearant Heir he had Right to the Mails and Duties from his Fathers Death untill his own Death though the Terms had been to run before he was born being in utero and that the Defender in so far as medling with the Rents was lyable for the Appearant Heirs Aliment but for the rest of the Familie the Lords superceeded to give answer till diligence were done against the Donatar or other Intrometters with the Moveables Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome Eodem die THomas Dumbar of Muchrome pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume wherein all the Terms being run reserving Defenses Now at the last Term it was alleaged for Hay of Arriolland no Certification contra non producta against him because he had produced a Precept of clare constat from the Pursuers Father as Heir to whom he pursues Secondly It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced and so till his Rights produced were discust and taken away there could be no Certification contra non producta The Pursuer answered to the first that the Precept of clare constat was but in obedience of a Precept out of the Chancellary As to the Ancient Rights produced if the Defender would rest thereon he needed not stand that Certification should be granted against any others not produced seing these produced are sufficient but if the Certification should be thus stopped the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time and still disputing thereon and so dispute the Reasons before the Production were closed at least the Defender ought to alledge that the Writs produced are sufficient and declare he will make use of no further in this Process The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience but found the second Alleadgance relevant hoc ordine and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer to answer thereto presently Collonel Iohn Fullertoun contra Viscount of Kingstoun Ianuary 8. 1663. COllonel Iohn Fullertoun having charged the Viscount of Kingstoun upon a Bond of borrowed Mony he suspends on these Reasons That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson and notwithstanding of the Assignation he uplifted the Sum himself at least his Brother by his order whereupon the Lady Kingstoun Daughter and Heir to the said Sir Alexander having Licence to pursue hath pursued the Collonel upon the Warrandice for Re-payment which Action being seen and returned and ready to be discust the Suspender craves Compensation thereon The Charger answered That the reason of Compensation is not relevant because it is not liquid the foresaid Sum not being confirmed by any Executor nor Sentence thereupon neither can it be instantly verified because it must abide Probation that the Collonel or his Brother by his order uplifted the Sum and there being only a licence to pursue the Debt cannot be established till a Confirmation Secondly Albeit the Compensation were relievable yet the Reason ought to be repelled because that any such Assignation was granted it was in trust to the Collonels own behove as is instructed by a missive Letter to the Charger produced It was answered for the Suspender that the Answers founded upon the missive Letter ought to be repelled because it was null neither being Holograph nor having Witnesses Secondly It is most suspect being written upon old blacked Paper The Charger answered that Letters amongst Merchands though not Holograph are sustained and ought much more among Souldiers especially between the Charger and Sir Alexander who then was his Lieutenant Collonel which is the more clear that there was never a question of it these 20 years neither was it contained in the Inventar of Sir Alexanders Papers though there were insert Papers of less moment but that it was gotten from one White for 40. or 50. Pound The Lords repelled the Compensation as not being liquid and found the Letters orderly proceeded superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger The Lords considering the matter was old and dubious before Answer they ordained Witnesses to be examined hinc inde upon all Adminicles that could be adduced for or against the Trust. Lady Otter contra Laird of Otter Eodem die THe Umquhile Laird of Otter by his Contract of Marriage having provided his Estate to his Heir Male provided 5000 Merks to his eldest Heir Female when she should be capable of Marriage and an occasion offered whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum and for payment of an Aliment to the Heir Female during the time she hath been with her Mother and in time coming till the provision be payed The Defender alleadged the Libel is no way relevant for Aliment he not being oblidged by the Contract for any Aliment but only for the Sum at such a time neither is there any Annualrent due for the Provision till the Term of payment Yet the Lords found that albeit that was no Annualrent nor provision for Aliment and that de jure Annualrent is but due ex pacto they would in this case allow an Aliment far within the Annualrent because it was all that the Daughters got for a very considerable Estate which was but a very small provision Patrick Nicoll contra Sir Alexander Hope Eodem die PAtrick Nicoll pursues a Declarator of Propertie of his Lands of Grantoun and that he had good Right thereto conform to the Bounds Lybelled It was alleadged for Sir Alexander Hope First All Parttes having interest
are not called this being an Action that in effect terminateth upon a Perambulation or Determining of the Marches It is a Real Action and there is necessity to call the Heirs of Sir Iohn Hope who died last vest and seased in the other adjacent Lands The Pursuer answered that he offered him to prove that Sir Iohn had Disponed in favour of Sir Alexander and resigned in his time It was answered for Sir Alexander that Sir Iohn was not Denuded seing no Infeftment followed and the Disposition is but an incompleat Personal Right so that some having the Real Right must be called The Lords repelled the Defense in respect of the Reply It was further alleadged for Sir Alexander that he had builded a park dyke upon a part of the Ground in Question before the Pursuers Right sciente astante domino the former Heretor having never opposed nor contradicted which must necessarily infer his consent The Pursuer answered that it was not relevant to take away any part of the Property upon such a presumptive consent neither was he oblieged to disassent seing he knew that which was builded upon his Ground would become his own in edificatum solo cedit The Lords repelled this Defense also but they thought that the taciturnitie might operat this much that Sir Alexander might remove the materialls of his Wall or get from Patrick Nicol quantum partem est lucratus by the building of the Wall Murray of Merstoun contra Thomas Hunterr Eodem die MVrray of Merstoun pursues Thomas Hunter fot a Spulzie of Malt who alleadged that as to that member of the Lybel of the Spulzie of the Malt by the Defenders hunding out or command It is only relevant scripto vel juramento The Pursuer answered that she qualified the Probation thus That the Defender intrusted a Messenger or Officer to execute a Precept of Poynding by delivering him the Precept and therefore the Precept with the execution thereupon is sufficient Probation The Defender answered that the same is not sufficient because the Officer execute the Precept extra territorium whereby it became a Spuilzie which ought not to be imputed to the Defender unlesse it were offered to be proven that he ordained the Officer to Poynd this Malt without the Jurisdiction and that only scripto vel juramento The Pursuer answered that as the giving of a Precept of Seasin is a sufficient warrant without any other Procuratry whatever the effect of the Seasin be so must the delivery of the Precept of Poynding be sufficient to instruct the warrand or command to Poynd where-ever the Poynding was execute and the user of the Poynding should be lyable to the deeds done by the person he intrusts Especially seing not only the Messenger was sent but other Servants and Messengers imployed by the user of the Poynding The Lords found the giving of the Precept of Poynding to the Messenger and his unwarrantable poynding Extra territorium not sufficient only but found it relevant to prove by the Messenger and Defenders Servants imployed by him their Oaths that they were commanded to Poynd this Malt or other goods in this place being Extra territorium Skeen contra Lumsdean Eodem die SKeen having charged Alexander Lumsdean for payment of a Bond for which he was Cautioner for Mr. Thomas Lumsdean his Brother Alexander Suspends on this Reason that the Bond was granted for a Bill of Exchange drawn by one Dutch man upon another to be payed to Skeen or his Order which Bill Skeen ordained to be payed to Anna Balty Spouse to Mr. Thomas Lumsdean for which this Bond was granted Ita est the saids Bills of Exchange were not payed but protested and is assigned by Mr. Thomas Lumsdean and his Spouse to the Suspender at least if any payment was made to Mr. Thomas Lumsdean the Cedent it was after the Assignation to Alexander Lumsdean the Suspender and intimation thereof It was answered for the Charger that the Reason ought to be repelled because he offered him to prove by Mr. Thomas Lumsdean at that time Factor at Campheir his Compt-book that albeit the Bills was once protested yet they were payed before Assignation or Intimation The Lords before answer having granted several Commissions to the Magistrats and Conservitor at Campheir to view and examine the Compt-book which was at Campheir They reported that in such a Page of the Book there was three Articles of Receipt in part of payment of the Bills after which Pages the Book was containued and several Compts written therein and that it was Authentick and Unvitiat and all written with the hand of Iohn Muire Mr. Thomas Stepson who was his Book-keeper and that they had been a long time since out of Mr. Thomas hands about the time he Bankerupted and that they had examined upon Oath him who drew the Bill amd him upon whom the Bill was drawn both who had sworn payment was made the question was whether Mr. Thomas Compt-book could prove against Mr Thomas his Assigney It was alleadged It could not seing it had no more Effect then as Holograph Discharge which might be made up after the Assignation and therefore proves not against the Assigney It was answered that though a Holograph Discharge will not prove alone yet if by other Adminicles Writs or Witnesses it appeas that the Date is true at least is prior to the Assignation or Intimation it will be sufficient against the Assigney so the Adminicles here are pregnant and strong to prove the time of payment contained in the Compt-Book The Lords found the Compt-Book and Adminicles sufficient here against the Assigney especially considering that the Cedent was his Brother and that it was not presumable that he would do any Deed in making up these Receipts in his Compt-Book in prejudice of his Brother Thomas Beg contra Sir Thomas Nicolson Ianuary 14. 1663. THomas Beg charges Sir Thomas Nicolson of Carnock upon his Bond of 4000 Merk he Suspends on this Reason the Charger is only Liferenter and hath no right to lift the Sum because the Bond is conceived thus to Thomas Beg and his Spouse the longest Liver of them two in Conjunct-fee and to the Bairns procreat betwixt them which failzing to two Bairns of a former Marriage Thomas and Margaret Begs and which Bond contains a Precept of Seasife for Infefting the said Thomas and his Spouse and the Bairns of the Marriage which failzing the said Thomas and Margaret Bairns of the former Marriage according to which there was a Seasine taken not only to the two Spouses but to the two Bairns nominatim who therefore are Feears The Lords repelled the Reason because having considered the Bond and Infeftment conceaved as aforesaid they found the Husband by the Conjunct-fee to be Feear and the Bairns of the Marriage to be destinat Heirs of Provision and the said Margaret and Thomas to be only substitue as Heirs of Tailzie failzing the Bairns of the Marriage and that therefore if the Father
the Right of the Teinds in the Patron in leu of their Patronage and also as he who had Tack thereof and had since possessed be tacit relocation The Defender alleadged as to the first Title that the Parliament 1649. was not only annulled but declared void ab initio as a meeting without any Authority as to the tacit Relocation it could not extend any further then so many years as the Beneficed Person could set It was answered for the Earl that the Rescissorie Act could not prejudge him as to any thing anterior to it's date unless it had born expresly to annul as to bygones The Lords found the Lybel and Reply Relevant as to bygones before the Act albeit there be no salvo in that Act as there is in the Rescissory Acts of the remanent Parliaments and found that the Pursuer had Right per tacitam relocationem till he was interrupted even for years which the Beneficed Person could not validly set as a Liferenters Tack will be validly set as a Liferenters Tack will be valide against the Feer per tacitam relocationem after her Death though she could grant no Tack validly after her Death Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn Eodem die THe Minister of Ednems Relict Insisting for the reparation of the Manss It was alleadged for the Heretors that those who have Right to the Teinds as Tacks-men or otherwayes ought to bear a proportion of the reparation The Lords found that albeit these who have right to the Teinds were accustomed to Repair the of Kirks and the Heretors the rest of the Kirk yet there was neither Law nor Custom alleadged the Teinds could be burdened with any part of the Reparation Sword contra Sword Eodem die ONe Sword as heir Served and Retoured to Bailzie Sword of Saint Andrews pursues for Intromission with the Moveable Heirship for delivery of the same and produces his Service done at Saint Andrews and Retoured whereby he is Served as Oye to the Defunct Bailzie his Father Brother compears another Party who is likewise Served Heir to that same Bailzie at Edinburgh and produces his Service Retoured by which he is served Heir to Bailzie Sword as his Father Brother Son whereupon he hath raised a Reduction in Latine under the Quarter-seal of the other Service which was prior and alleadges that he being in a nearer degree of Blood then the other in so far as he is a Father Brother Son and the other Service bears him to be but a Father Brothers Oye The Lords having considered both the Retoures and that they were not contradictory inferring manifest Error of the Assize because it was sufficient for the Assize to Serve the Father Brothers Oye if they knew of no nearer Degree And also because the Defunct Bailzie might have had two Father Brothers one elder then his Father and the other younger and thereby two Heirs one of Line and another of Conquest which not being clear by the Retoures the Lords will not prefer the first Retour as standing but would hear the Parties upon the Reduction Mr. James Stuart contra Mr. John Spruile Ianuary 21. 1663. MR. Iames Stuart and Robert Stuart Bailzie of Lithgow as Curator to him as a Furious Person or Idiot by Gift of the Exchequer pursues Mr. Iohn Spruile for Sums of Mony due to Mr. Iames. It was alleadged no Process at the Instance of Robert Stuart as Curator because by Law the Tutors or Curators of Furious Persons are conform to the Act of Parliament to be Cognosced by an Inquest whether the Person be Furious and who is his nearest Agnat of the Fathers side past twenty five The Lords found Process Robert Stuart finding Caution to make forth coming and declared it should be but prejudice to the nearest Agnat to Serve according to the said Act of Parliament for they thought that as the Lords might name Curators ad litem in the interim so might the King and that the Exchequer was accustomed to do William Zeoman contra Mr. Patrick Oliphant Ianuary 22. 1663. IN a Competition betwixt Zeoman and Oliphant anent the Estate of Sir Iames Oliphant who having killed his Mother was pursued Criminally therefore before the Justice and being Charged to underly the Law for the said Crime under the pain of Rebellion he compeared not and the Act of Adjournal was declared Fugitive and his moveable Goods ordained to be Inbrought The Criminal Libel proceeded both upon the Act of Parliament against Paricide and also upon the Act of Parliament declaring that killing of Persons under assurance of Trust to be Treasonable Hereupon the King granted a Gift of Sir Iames Forefaulture to Sir Patrick Oliphant who thereupon was Infeft It was alleadged for William Zeoman who had Right by Appryzing that there could be no respect to the Gift of Forefaulture because Sir James was never Forefault but only declared Fugitive and Denunced as said is and that any Doom of Forefaulture had been pronounced the Crime behoved to have been proven before an Assize else there could be no Forefaulture neither could the Donator possess medio tempore till the Crime were yet put to the Tryal of an Assize because Sir Iames is dead The Lords found that the Gift of Forfaultuee could not be effectual for the Reasons foresaid and found that the Act against Paricide could be no foundation of a Gift because it only excluded the Murderer and his Descendents to succeed to the Person Murdered by declaring expresly that the Murderers Collaterals should succeed and so there was no place for the King And as for the other Act of Murder under Trust they found that there being no probation it could work nothing and there is no doubt but though there had been Probation that Act of Murder under Trust doth not directly quadrat to this Case upon that natural Trust betwixt Parents and Children but only to Trust given by express Paction or otherwise it could evacuat the benefit of the foresaid other Act anent Paricide and would prefer the Fisk to the Collaterals of the Murderer if he had done no wrong contrair to the said Act anent Paricide which is not derogat by the other Wallace contra Edgar Eodem die IAmes Wallace as Assigney by Iames Scot to a Decreet obtained against Iohn Edgar in Drumfreis having Charged thereupon Edgar Suspends and alleadges Compensation upon Debts due by Scot the Cedent to the Suspender before the Intimation of his Assignation and therefore according to the ordinary Course Debts due by the Cedent before Intimation are Relevant against the Assigney and condescends upon several Bonds and Decreets against the Cedent assigned to the Suspender before the Chargers Intimation The Suspender answered that albeit any Debt due by the Cedent to the Debitor before Intimation will be relevant to compense against the Assigney yet that will not extend to Sums assigned to the Debitor before the Chargers Assignation unless that Assignation had been
Defense in that Case must always be that the Defender is Tennent by payment of Male and Duty to such a person who either is Infeft or hath Tack and Terms to run after the Warning but if the Charger had a Tack standing the Lords ordained him to produce the same and they would hear the Parties thereupon Charles Oliphant contra Dowglasse of Donnoch February 3. 1663. CHarles Oliphant as Assigney Constitute by David Macbrair Charges Dornoch to pay the sum of 1800 merks Compearance is made for an Arrester as having Arrested before the Assignation at least before Intimation The Assigney answered no preference upon this Arrestment because it was Execute upon the Sabbath Day and so is not lawful for by the Law of all Nations Judicial Acts done by Authority of Judges upon Legal Process diebus feriates are null and there is an Act of Sederunt to that same effect The Arrester answered that there was no Law prohibiting such Executions or declaring them null and though it was a fault and breach of the Sabbath to do so that annuls not the Act fiâri non debet sed factum valet The Lords were all clear that such Executions should be prohibit in time coming but quo ad praeterita some were non liquct Yet the major part found the Execution null for they thought that albeit Acts of privat Parties on the Sabbath Day might stand legally valid as if Extracts were Subscribed that day or a Consignation made which had been found valid by a former Decision yet judicial Acts authoritate judicis are null else Messengers would ordinarly wait Parties upon the Sabbath Day for all Execution by Horning and Caption c. Laird Phillorth contra Lord Frazer February 4. 1663. SIR Alexander Frazer of Phillorth being in Distresse for Debt Disponed his Barony of Cairnbuilg to Robert Frazer of Doors which Lands of Cairnbuilg lyes near to Phillorth and the House thereof was his Residence in the Alienation there is a Clause conceived to this effect that it shall not be leisom to the said Robert Frazer of Doors to Alienate the Lands during the Lifetime of the said Sir Alexander Frazer and if the said Robert Frazer did in the contrary he obliged him to pay to the said Sir Alexander the Sum of ten thousand pounds for Damnage and Interest ex pacto convento and if the said Robert should have aâdo to sell the saids Lands after the death of the said Sir Alexander he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander or any Person he pleased nominat of the Name of Frazer for 38000 pounds The said Robert Frazer of Doors Disponed the saids Lands to Staniewood during the life of Sir Alexander Frazer Sir Alexander assigned the Contract and the foresaid Clause to this Phillorth whereupon he raised Improbation and Reduction of the Disposition granted by Doors to Staniewood the Lord Frazers Grand-Father upon this Reason that he as Assigney by his Father to the Clause de non alienando had good interest to pursue Reduction of the Disposition contraveening the said Clause and true it is that the said Disposition granted by Doors to Staniewood was null as proceeding a non habente potestatem in so far as by the foresaid Clause in the said alienation granted by his Grand-Father to Doors it was expresly provided it should not be leisom for Doors to sell c. Which being a Provision in the Disposition repeated at the least generally in the Procuratory of Resignation is pactum reale effectual against singular Successors as was lately found in the case of the Lord Stormont and so must annul the Right made contrair thereto 2ly Albeit it were not a real Paction yet unquestionably the Obligement not to Annalize did personally oblige Doors and thereupon there was an Inhibition raised before my Lord Frazers Grand-Father Staniewoods Right And therefore the Disposition made thereafter ought to be reduced ex capite inhibitionis It was answered for the Lord Frazer to the first member of the Reason non relevat for such an Obligation de non alienandoâ is reprobat in Law as being contrair the nature of Property 2ly It is not reale pactum albeit it were in the Charter or Seasine much less being only in the Disposition and in the Narrative of the Procuratory of Resignation thus and to the effect the said Robert Frazer may be Infeft upon the provisions and conditions in manner foresaid but no further mention thereof in the Procuratory of Resignation or Infeftment and so meets not with Stormonts Case where the Clause was expresly resolutive that in such a Case the Right should be null ipso facto and return to the next person who might be Heir of Tailzie Which Clause was not only in the Disposition but in the Procuratory Charter and Seasine Registrate and thereby equivalent to a Publication of an Interdiction but here there is no resolutive or irritant Clause nor any Right reserved to return in case of contraveening nor is it in the Infeftment at all As to the second the Inhibition cannot make the Clause effectual to annul the Alienation because Doors was not simply obliged not to Alienat during Sir Alexanders Life but if he did in the contrair to pay ten thousand pound for Damnage and Interest ex pacto convento which cannot be understood of Damnage by delay or Expence in attaining the principal Obligation seeing it bears not as is ordinar by and attour performance and the quantity thereof being so great it must be evidently understood of the value of the principal Obligation so that it becomes an alternative or restrictive Clause whereby it was in Doors option whether to forbear to sell or to pay the ten thousand pounds if he did sell so that the Inhibition can reach no further then to the ten thousand pounds seing Doors by selling became obliged for the ten thousand pounds The Lords found the Defense Relevant and that the Clause or Inhibition could extend to no further then ten thousand pounds It was further alleadged for Frazer absolvitor from the ten thousand pounds because it being a Moveable Sum fell under Sir Alexander Frazer his Escheat which was Gifted to one Forbes and declared expresly as to this ten thousand Pounds and assigned to the Lord Frazer The Pursuer answered that this Sum was Heretable because it succeeded in the place of the principal Obligation not to alienat for such a time and after that time to offer the Lands of Phillorth and his Heirs for eight thousand pounds which is clearly an heretable Clause and therefore this Sum coming in leu thereof must belong to the Heir or Assigney and so fell not to the Fisk seing surrogatum sapit naturam surrogati as Sums Consigned for Redemption of Lands before Declarator are not moveable but belong to the Wodsetters Heirs or Assigneys so in mutual Obligations whereby one person oblieges to Dispone or Resign Lands and another is oblieged for
Second Answer upon the Act of Council it cannot prove against the Suspenders being only under the Town-clerks hand not being a Process upon Citation nor having a Warrnat subscribed by the Suspenders The Lords having considered the Bond in Question albeit they found the tenor thereof not to be contrair the Act of Parliament yet found the same was unwarranttably taken if the same was extortâd as aforesaid and found the Decreet of the Lords not to militat against the Suspenders or to warrand that incarceration brevi manu and found the Act of Council proved not agaiâst the Suspenders and yet Ordained them to renew a Bond by the Lords Authority of the like tenor Elizabeth Fleming and Sir Iohn Gibson contra Fleming and Robert Baird BY Contract of Marriage betwâxt the said Robert Baird and his Spouse he accepted 12000 merk in name of Tocher in satisfaction of all his Wife could succeed to by her Father Mother Sister and Brothers and discharged his Mother as Executrix and Tutrix thereof Yet she having formerly put more Bonds in the name of Roberts Wife then this Sum and there being no Assignation to the remainder in the Contract pursues the said Robert and his Spouse to grant an Assignation thereof and to pay what he had uplifted of the Sums more nor his Tocher The Defender alleadged the Summons are not relevant he neither oblidged ex lege nor ex pacto to Assign The Pursuer answered this being bona fidei contractus the meaning and interest of the Parties is most to be respected and therefore though it contains but expresly a discharge which cannot be effectual to lift the Sums from the Creditors but would loss them to both Parties he must Assign especially seing his acceptance of full satisfaction imports an oblidgment to denude himself of the superplus And which the Lords found relevant and sustained the Summons Walter Riddell contra Eodem die WAlter Riddell as Executor dative confirmed to one Liddell in the Caânongate pursues his Debitors to pay compears a Donator as ultimus Haeres and craves preference The Pursuer answered First His Gift was not declared 2dly He offered to prove the Defunct had an Agnat viz. an Uncle or an Uncles Son Which the Lords found relevant to be proven by Witnesses Robertson contra Buchannan February 14 1663. RObertson pursues Buchannan to repay to him a sum of Money who alleadged that his Bond bearing to pay this Charger or to Arthur Buchannan his Brother it is alternative electiâ est debitoris and he has compensation against Arthur which is equivalent as if he had payed him The Lords repelled this alleadgance and found that the Charger being deliverer of the Money and now haver of the Bond it could import no more but that the other Brother was adjected for the Chargers behove and that there is no option to the Debitor in such cases Mr. Iames Forsyth contra Archibald Patoun February 17. 1663. MR. Iames Forsyth as Executor Confirmed to his Sister pursues the said Archibald Patoun her Husband for payment of her third of his Free Goods at the time of her death The Defender alleadged First By the Deceased Wifes Contract of Marriage with the Defender she accepted a 1000 lib. for all she could crave by his decease in case there were no Bairns of the Marriage and albeit there was a Bairn surviving her yet the Bairn shortly thereafter dyed The Lords repelled this Defence and found that the Bairn surviving the Mother never so short was enough It was further alleadged absolvitor because the Deceased Wife having a Child surviving her her share belonged to that Child as nearest of Kin and the Child being dead belongs to the Defender the Childs Father as nearest of Kine to the Child and cannot go back to the Mothers nearest of Kin because there is no succession of Cognats in Scotland The Pursuer answered that if the Child had been Executor Confirmed to the Mother ad eundo haereditate would transmit the same to the Father but there being no Confirmation haerediâas mobilium jacebat and the Goods remain yet still in bonis defuncti maritis and albeit it was found in the case of Bells contra Wilkies that it was not necessar to transmit moveables that the Testament were execute yet in that case it was a Confirmation which was esteemed an addition The Defender answered that he had done diligence to have it Confirmed but during the Childs life all Judicatories were stopped and he had taken Instruments of his desire to be Confirmed and alleadged that as Bairns surviving would transmit their Legittime though they had done no diligence so this Bairn surviving alone was sufficient The Lords found that seing there was no Confirmation the Right was not established in the Childs Person and that the Right could not fall to the Father but fell to the nearest of Kin of the Mother and found it was not like a Legittime which is only of the Fathers means and not of the Mothers and hath a special priviledge in Law to be transmitted by more superviving Margaret Hay contra Sir Geoâge Morison Eodem die SIR Geoege Morison having granted a Bond to Umquhile Iohn Bell and Margaret Hay the longest liver of them two in Conjunct-fee and after their Decease to the Bairns of the Marriage the said Margaret with concurse of the Bairns charges for Payment Sir George Suspends on this Reason that Margaret is but Liferenter and the Bairns of the Marriage are but Feears and therefore seing there was an Infeftment upon the said Bond he ought not to pay the Sum till the Bairns be Infeft as Heirs of Provision of the Marriage to their Father and renunce the Infeftment The Lords decerned but superseded the Extract untill the Bairns were Infeft as Heirs of Provision to their Father and did grant Renunciation and found that all the Bairns Male and Female joyntly and equally behoved to be Served as Heirs of Provision to their Father in this Annualrent and Infeft accordingly and that by Bairns was not to be understood the Heir of the Marriage only Colonel Iames Montgomery contra The Heirs of Robert Halliburtoun Eodem die IN a Declarator of Redemption of a part of the Lands of Collfield The Lords sustained the Order at the instance of the Collonel as being a Singular Successor albeit he produced not the Reversion at the using of the Ordor nor now seing the Defender compeared and he offered to prove by their Oath or their Curators that they had the Contract of Wodset in their hand both then and now Birsh contra Dowglas February 18. 1663. BIrsh an Inglish Woman pursues Catharine Dowglas to pay a Bond wherein she and her Umquhile Husband were oblidged The Defender alleadged absolvitor because it was a Bond stante matrimonio given by a Wife which is null in Law It was replyed it is Ratified Judicially and the Defender oblidged never to come in the contrare upon Oath Judicially which is the strongest
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be âyable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of ãâ¦ã Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâs Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
own Rigt The Lords Repelled the Defense in respect of the Reply Cicil Ruthven contra Hay of Balhousie Eodem die CIcil Ruthven having granted a Bond to David Lamb that thereupon he might Apprize from her an Annualrent whereunto she was Apparent Heir whereupon she having obtained a Decreet and now seeking Adjudication in Lambs Name Lamb produces under his hand a Writ declaring that his Name was but used in Trust that he disclamed the Processe The Lords notwithstanding Sustained Procâsse being so far proceeded in respect of the Declaration bearing the Trust and found he could not disclaim in prejudice of the Trust. Lady Swintoun contra Town of Edinburgh Eodem die THe Magistrats and Councel of Edinburgh having granted them to be Debitors to the Lady Swintoun by way of Act conform to their Custom The Lady supplicat that the Lords would grant Letters of Horning upon the said Act whereupon the Magistrats being Cited upon twenty four hours alleadged they were not Conveenable hoc ordine by suiting Letters of Horning upon a Bill but it ought to have been by an ordinary Summons either craving payment or Letters conform The Lords notwithstanding granted Letters of Horning Baillies of Edinburgh contra Heretors of East-lothian and Mers February 20. 1663. THe Baillies pursue these Heretors for so much allowed of the Maintainance of these Shires of the moneths of August and September 1650. And insisting on an Act of Litiscontestation in Anno 1659. Whereby the Defenders having proponed a Defense of total vastation the same was found relevant The Defenders having now raised a review alleadge that they ought not to have been put to prove total Vastation seing Vastation was Notour these Shires being the Seat of the War where the English Aarmy lay which ought to have freed them unlesse the Pursuers had replyed that the Heretors got Rent that year and had been burdened with the Probation thereof 2dly The Order of Sir Iohn Smiths general Commissar and also of the Provisors of the Army bearing the Provisors to have Furnished such Provisions want Witnesses and might have been made up since they were out of their Offices The Lords adhered to the Act and found the Defense of total Devastation yet Relevant in this manner that the Heretors got no Rent and granted Commission to receive Witnesses at the head Burghs of the Shires for each particular Heretor to prove their particular Devastations and Sustained the Order of the General Commissar he making faith that he subscribed an Order of the same Tenor while he was in Office Hary Hamiltoun contra William Hamiltoun February 21. 1663. HAry Hamiltoun pursues his Brother William as behaving himself as Heir to their Father Iohn Hamiltoun Apothecary to pay six thousand merks of Provision by Bond and condescends that William intrometted with the Rents of the Lands of Vlistobe whereunto his Father had Heretable Right The Defender answered that his Father was not Infeft because he Infeft the Defender therein before his Death Reserving only his own Liferent The Pursuer answered that the Infeftment was under Reversion and was Redeemed by the Father which Order though not Declared gave him the Right to this Land and was more than equivalent to an Heretable Disposition cled with Possession which would make the Apparent Heirs intrometting infer behaving as Heir for the Declarator non constituit sed declarat jus constitutum The Lords Repelled the Defense and duply in respect of the condescendence and reply of the Order used 2ly The Defender alleadged absolvitor because those Lands were Apprized from the Defunct and thereby he was denuded and so the Defender could not be Heir therein at least he could have nothing but the Right of Reversion which reacheth not to Mails and Duties The Lords found that unlesse the Defender had Title or Tolerance from the Apprizer the Legal not being expired but the Debitor in Possession his Heir intrometting behaved as Heir the Apprizing being but a Security of which the Apprizer might make no use or but in Part as he pleased Stirling contra Campbel Eodem die THe same last point was found betwixt these Parties and also that the Heirs Intromission with the whole Silver work so comprehending the best of them which is the Heirship was gestio pro haerede Anna Wardlaw contra Frazer of Kilmundi Eodem die ANdrew Wardlaw having a Wodset upon some Lands of the Lord Frarzer The Debitor raises Suspension of multiple Poinding against Anna Sister and Heir to the said Andrew Wardlaw and Frazer of Kilmundi pretending Right by a Legacy from the Defunct to the same Sum. The Heir alleadged that it could be lyable to no Legacy being Heretable The Defender answered primo the Legacy was made in proâinctu belli where there was no occasion to get advice of the Formal and Secure way of disposing of the Wodset but the Will of the Defunct appearing in eo casu it must be held as effectual as Testamentum militare in procincâu which needs no solemnities 2ly The Heirs Husband hath homologat the Legacy by discounting a part thereof It was answered that no Testament whatever can reach Heretable Rights with us 3ly That the homologation of the Husband cannot prejudge his Wife nor himself quoad reliquum not discounted The Lords found the Heirs had only right except in so far as the Husband had homologat the Legacy which they found to prefer the Legator to the whole benefit the Husband could have thereby jure mariti but not to prejudice the Wife thereafâer Iames Aikenhead contra Marjory Aikenhead February 25. 1663. THe said Iames insists for the delivery of a Bond granted to his umquhile Father and Assignation thereto by his Father to him against the said Marjory producer thereof It was alleadged no delivery because the Assignation in favours of the Pursuer was never delivered but keeped in his Fathers Possession which cannot be accompted his Possession seing the Pursuer is a Bastard 2ly The conception of the Assignation is to the Pursuer and his Heirs which failzing to the said Marjory and her Heirs and he being now Minor ought not to dispose of the Sum in her prejudice The Lords Repelled the Defenses against the delivery and found that the Pursuer during his Minority should not uplift the Sum till the Defender were called and had accesse to plead her Interest Adam Hepburn contr Helen Hepburn Eodem die THe Estate of Humby being provided to Heirs whatsoever umquhile Tomas Hepburn of Humby in his Contract of Marriage with Elizabeth Iohnsâoun provides the said Estate to the Heirs-male and provides 25000. merks for the Daughters there is a Clause of the Contract Bearing that it should be leisome to the said Thomas at any time during his Life to alter the said Provision or to dispone thereof according to his pleasure thereafter upon Death-bed he Disponed the whole Estate in favours of his Daughter of the Marriage being his only Child Adam Hepburn his Brother as Heir-male intents
answered many exceptions though they bear not so expresly yet they are rather Declaratory of a Right then in being then statutory introducing a new Right The Lords found Singular Successors free and reduced the Decreet pro tanto Earl of Lauderdail contra Wolmet Eodem die THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet against Major Biggar who alleadged absolvitor because the Lands of Wolmet were Valued and approven The Pursuer replyed that the said Decreet of Valuation was improven by a Decreet of Certification obtained there against at the instance of Swinton having Right to these Teynds for the time by a Gift from the Usurper The Defender duplyed that no respect ought to be had to the said Certification First because this Pursuer derives no Right from Swintoun being only restored to his own Right and Swintouns Right from the Usurper found null so that as the Pursuer would not be burdened with any Deed of Swintouns to his prejudice neither can he have the benefit of any Deed of Swintouns to his advantage 2dly The said Certification was most unwarrantable in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds the Defender was not oblidged to produce it but the Pursuer ought to have Extracted it himself 3dly All Parties having interest were not called to the said Certification viz. Mr. Mark Ker the Wodsetter by a publick Infeftment in whose Right Major Biggar now Succeeds And last the Defender alleadged that he had a Reduction of the Certification upon Minority and Lesion and the unwarrantable Extracting of it The Pursuer answered to the first that seing Swintoun did use the Pursuers Right all reall advantages which were not Personal but consequent upon the Real Right and which belonged not to Swintoun personaliter but as prerended proprietar do follow the Real Right it self and Accresce to the true Proprietar as if he had acquired a Servitude or had reduced the Vassalls Right âb non solutum canonem To the Second oppones the Certification wherein compearance was made for Wolmet and three Terms taken to produce and no such Defense was alleadged as that the Valuation was in a publick Register To the Third the Pursuer needed not know the Wodsetter because it was an Improper Wodset the Heretor Possessing by his Back-bond as Heretable Possessor seing the Decreet of Valuation was at the Heretors instance it was sufficient to Reduce it against his Heir for it would not have been necessar to have called the Wodsetter to obtain the Decreet of Valuation but the then Heretable Possessor so neither is it necessar to call the Wodsetter to the Reducing or improving thereof To the last no such Reduction seen nor ready neither the Production satisfied The Lords Repelled the Defense and duplyes in respect of the Certification which they found to accresce to the Pursuer but prejudice to the Defender to insist in his Reduction as accords and declared that if the Defender used diligence in the Reduction they would take it to consideration at the conclusion of the cause Balmirrino contra Sir William Dicks Creditors Iuly 14. 1664. JAmes Gilmor for the use of the Lord Balmirrino being Infeft in the Lands of Northberwick upon a Right from Sir Iohn Smith who had Right from Sir William Dick pursues the Tennents for Mails and Duties Compearance is made for Sir Williams other Creditors Wodsetters and Appryzers who alleadged absolvitor because the Pursuers Right is Extinct in so far as Balmirrino being Debitor to Sir William Dick and charged by him had acquired this Right from Sir Iohn Smith to compence Sir William and did actually compence him by alleadging the same reason of Compensation producing the Disposition then blank in the Assigneys name whereupon the Letters were Suspended Simpliciter aud my Lord assoilzied and the Disposition given up to Mr. Alexander Dick which is instructed by the Testimony of William Douny Clerk at that time Balmirrino answered First That William Dounys Testimony could not make up a Minute of Decreet where there were no Process nor Adminicle to be seen 2dly Though the minute of the Decreet were lying before the Lords not being Extracted the Lord Balmirrino might passe from his Reason of Compensation and take up his Disposition which is always permitted before Litiscontestation or Decreet and Litiscontestation is never accounted untill the Act be Extracted So that there being no Act of Litiscontestation Extracted in the said Process but only an alleadged minute of a Decreet without an Act neither Partie might resile 3dly Though the Suspender might not resile Simpliciter yet it is still competent to him to propone a several reason of Suspension before Extract being instantly verified and now he propones this Reason that the Debt awand by him to Sir William Dick is a publick Debt and the Parliament has Suspended all execution thereupon till the next Parliament which by consequence liberats him from making use of or instructing his Reason of Compensation The Creditors answered it was most ordinar for the Lords to make up Minuts by the Testimonies of the Clerks when they were lost So that William Douny being a famous Clerk his Testimony must make up the Minute after which the Lord Balmirrino cannot resile from his Reason of Compensation or take back the Disposition seing it was his own fault he did not Extract it and cannot make use now of a Supervenient Exception that was not at that time Competent in prejudice of their Creditors Balmirrino being now in much worse condition The Lords found that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation and take up his Disposition seing it did not appear that the Process was miscarried through Balmirrino's fault or that the Disposition was delivered to Mr. Dick neither of which did appear by William Dounys Testimony Thomas Crawfoord contra Prestoun Grange Iuly 15. 1664. THomas Crawfoord as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof who Suspended upon this Reason that these Lands were a part of the Patrimony of the Abbacy of New-botle which Abbacy was of the Cistertian Order which Order did injoy that Priviledge that they payed no Teynds for their Lands while they were in their own Labourage or Pastourage of which Priviledge not only the Abbots but after them the Lord New-botle and the Defender hath been in Possession and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh in Anno 1587. For the Teynds of the Lands of Newbotle upon the same Defense was Assoilzied which Decreet standing must be sufficient to the Defender ay and while it be reduced likeas the Defender stood Infeft in the saids Lands by the King with express Priviledges decimarum more solito The Charger answered
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
1621. It was answered for the Lady They opponed the Lords dayly Practique ever since the said Act that Infeftments were never taken away thereupon by Exception or Reply Which the Lords found Relevant Montgomerie contra Hoom. Eodem die WIlliam Mongomery pursues Alexander Hoom to Remove who alleadged absolvitor because he stands Infeft and by vertue thereof in seven years Possession and so hath the benefit of a Possessorie Judgement It was Replyed that before any such Possession a Decreet of Removing was obtained against the Defender which made him mala fide Possessor It was duplyed that since that Decreet which was in absence the Defender had Possessed it seven years without Interruption which acquired the benefit of a new Possessorie Judgement And alleadges that an Interruption of Possession ceases by seven years albeit in the Point of Right it ceases not till Fourty The Lords found the Interruption stands for fourty Years and that no Possession thereafter upon that same ground could give a new Possessorie Iudgment the Possession being Interrupted not only by Citation but by a Decreet of Removing which stated the other Partie in Civil Pessession Earl of Sutherland contra Mcintosh of Conadge Eodem die THe Earl of Sutherland pursues Mcintosh of Conadge for the profit of a Regality belonging to the Earl viz. Blood-wyts Escheats c. whereof Conadge had obtained Gift from the Usurpers the time that Regalities were Supprest and declared that he insisted for those only that were yet unuplifted for which the Parties Fyned had not made payment albeit some of them had given Bond. The Defender alleadged absolvitor for Blood-wyts and Amerciaments which might have been done by the Justices of Peace because as to these the Inglish had done no wrong seing the Justice of Peace might then and may now Cognosce and Fyne for Blood-wyts whithin the Regality The Pursuer answered that as he might have Re-pleadged from the Justice General if he had not been impeded by the Act of the Usurpers so much more might he have re-pleadged from the Justice of Peace and therefore any Blood-wyts decerned by them belonged to him as Lord of the Regality The Lords repelâed the Defense and joând the dead of the Iustice of Peace could not prejudge the Pursuer M. John Muirhead contra Iuly 21. 1664. MR. John Muirhead as Assigney pursuing he alleadged that the Assignation not being intimat before the Cedents death the Sum was in bonis defuncti and the Assigney could have no Right without Confirmation The Lords Repelled the alleadgance James Johnstoun Merchant in Edinburgh contra The Lady Kincaide November 11. 1664. JAmes Iohnstoun pursues the Lady Kincaide as Executrix to her Husband who alleadged absolvitor because the Testament was exhausted and she had obtained a Decreet of Exoneration which being standing un-reduced she behoved to be assoilzied seing there was no Reduction thereof raised 2ly Albeit the said Exoneration were quarrallable hoc ordine yet it appears thereby that the Testament was exhausted The Pursuer answered that the first Defense on the Exoneration non Relevat unless the Pursuer had been cited to the giving thereof it operats nothing against him nor needs he Reduce it 2ly The second member of the Defense of exhausting the Testament mentioned in the Exoneration non Relevat unlesse it were alleadged exhausted by lawful Sentences before intenting of the Pursuers Cause The Defender answered that it was Relevant to alleadge that payment was made of lawful Debts of the Defuncts instructed by writ before intenting of the Pursuers Cause for seing the Debt was clear the Executor ought not to multiply Expenses by defending against the same unless it were alleadged there were collusion to prefer the Creditors payed The Lords repelled both members of the Defense and found that the Executrix might not without a Sentence prefer any Creditor especially seing it was not a Debt given up in Testament by the Defunct neither was it alleadged that the Pursuer had long neglected to pursue Nicolas Murray Lady Craigcaffie contra Cornelius Neilson Merchant in Edinburgh November 12. 1664. NIcolas Murray pursues a Reduction of a Decreet of the Baillies of Edinburgh obtained against her at the instance of Cornelius Neilson upon this Reason that she being pursued for the Mournings for her self and Family to her Husbands Funeralls which Mournings were delivered to her by the said Cornelius and were bought by her from him or by her Order sent to her which was referred to her Oath and she deponed that Cornelius had promised to his Father to give necessars for his Funerals out of his Chop and according to that promise had sent unto her The Baillies found that this qualitie adjected in the Oath that the Furniture was upon Cornelius promise to his Father resulted in ane Exception which they found probable by Write or Oath of Cornelius who having deponed denyed any such promise and therefore they decerned the Lady to pay Against which her Reason of Reduction is that she ought to have been Assoilzied by the Baillies because her Oath did not prove the lybel viz. That she bought the Wair from Cornelius or made her self Debitor therefore but only that she received the same from him without any Contract or Ingadgment which would never make her Debitor for a Wife or a Bairn in Family are not lyable for their Cloaths unless they promise payment but only the Father and in the same manner the Mourning for the Funeralls of the Husband is not the Wifs Debt but the Husbands Executors The Defender answered that the Reason was no ways Relevant seing the Pursuers Oath proved the receipt of the Goods which was sufficient ad victoriam causa The quality being justly taken away for albeit the Husband or his Executors were lyable for the Relicts Mournings yet a Merchant that gives off the same to the Relict is not oblidged to dispute that but may take himself to the Relict who received the same without either Protestation or Aggreement not to be lyable The Pursuer answered that whatever Favour might be pleaded for a Merchant Stranger yet this Furniture being given by the Defuncts own Son to his Relict could not oblidge her The Son being the Fathers ordinar Merchant The Lords found that the Oath before the Baillies proved not the lybel and that the accepting of the Mournings did not oblidge the Relict but the Executors seing the Defunct was a Person of their quality that his Relict required mourning and therefore Reduced Galbreath contra Colquhoun Eodem die WAlter Galbreath pursues an Exhibition of all Writs made by or to his Predecessors ad deliberandum The Lords restricted the lybel to Writs made to the Defunct or his Predecessors or by them to any Preson in their own Family or containing any Clause in their âavour whereupon the Defender having Deponed that he had in his hand a Disposition of Lands made by the Pursuers Predecessors Irredeemably and that he had his Predecessors progress of these Lands but that
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâat she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
amongst themselves how dangerous it were if the Creditors or Persons intrusted obtaining Infeftment of an intrusted Estate the Back Bond of Trust being personal would not exclude them and albeit the Person intrusted were not solvendo as in this Case the Intrusted Estate as to the Heirs and Creditors would be inavoidablie lost And some being of opinion that a Personal Exception upon a Back Bond could not be competent to burden or qualifie a real Right or an Action for obtaining thereof But the most part were of opinion that albeit the Right if it were compleat would be real yet this Action for obtaining thereof is but Personal for real Actions are such only which proceed upon real Rights and against the Ground such as upon Annualrents and therefore this being a Personal Action might be excluded or qualified by a Personal Exception upon the Back Bond. And therefore they Adjudged with the Burden of the Back Bond. Earl of Sutherland contra Hugh Gordoun December 1. 1664. THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal that his Right being holden Feu two terms has run into the third and thereby the Right is extinct not only by the Act of Parliament but by a particular Clause in the Defenders Infeftment at least in the Disposition whereupon his Charter and Seasine proceeds There is also called an Apprizer who alleadged that he being a singular Successor and a stranger to his Authors Rights during the Legal unexpyred is not oblieged to possess and cannot omit his Right by his Authors fault or by his own Ignorance The Lords having considered this Case and reasoning amongst themselves upon the difference of a Clause Irritant in an Infeftment Feu and the benefit of the Act of Parliament they found that if the Pursuer insisted upon the Act of Parliament the Defender might purge the Failzie by payment at the Bar but if he insisted upon the Clause in the Infeftment it behoved to be considered whether that Clause was in the real Right by the Charter and Seasine either specially or generally under the provisions contained in the Disposition Or if it was only in the Disposition In which case though it might operat against the Vassal or his Heirs yet not against the Appryzer unless the Seasine had been immediatly upon the Disposition In which case the Disposition serves for a Charter And therefore ordained the Pursuer to condescend and it is like that in favours of the Appryzer being a stranger they would suffer him to purge at the Bar utcunque in this Cause it was not found necessar to cite all Parties at the Mereat Cross albeit the Letters bear so Veatch contra Paterson December 2. 1664. PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause that the Tennents should be relieved of all publick Burdens and having left the Land in 1653. two or three years thereafter he raised a Pursuit against Paterson the Heretor for payment to him of all the publick Burdens he had payed out and renews the same Pursuit and produces the Receipts of the publick Burdens and alleadges that there was a Penalty in the Tack of an hundred pound that he should Possesse Veatch at the Entry of the Tack wherein he failzied The Defender alleadged that it must be presumed that all the Tickets and publick burden was allowed in the Rent or otherwise past from by the Pursuer seing he voluntarly payed his hail Rent Or otherwise all the publick burdens in Scotland payed by Tennent may infer a Distress upon their Masters to repay the same The Pursuer answered that that presumption could not take away his Writ viz. the Tickets produced but if the Defender gave Discharges he ought to have made mention of the allowance of the publick Burdens therein The Lords having considered the Case as of Importance for the preparative found the Defense upon the Presumption Relevant unless the Pursuer instruct by Writ or the Defenders Oath that these Tickets were not allowed in the Rent And as for the Penalty the Lords found that it ought to be restricted to the damnage and that the same was not now probable otherwise then by the Defenders Oath Iames Wilson contra Alexander Home of Linthill Eodem die JAmes Wilson having pursued Alexander Home of Linthill as Sheriff of the Shire for the Debt of a Rebel whom he suffered to Escape In which this Defense was found Relevant that the Rebel in the taking had wounded these that were taking him and had Escaped vi majore The Laird of Clerkingtoun contra The Laird of Corsbieâ December 3. 1664. SIr William Dick having Appryzed some Lands holden of the Town of Irving and charged the Magistrates to receive him The Laird of Corsbie having Compryzed the same Lands some dayes after was received by the Town the next day after Sir Williams Charge and about a Month after Sir William was also Infeft Clerkingtoun having Right from Sir William pursues Corsbie First for Mails and Duties Corsbie was found to have the benefit of a possessory Judgement by seven years Possession and thereupon was Assoilzied Now Clerkingtoun insists in a Reduction on this Reason that he having first Appryzed and Charged the Superiour they Colluded with the Defender and gave him a voluntar infeftment the next Day after his Charge and therefore his Infeftment though after ought to be drawn back to his Charge and Diligence and he preferred The Defender answered that the Reason ought to be Repelled because the weight of the Reason is the Pursuers Diligence and the Superiours Collusion which hold not because all the Diligence Sir William Dick did was the first Charge upon the Letters of four Forms which bear only with Certification that in Case of Disobedience Letters of Horning would be direct simpliciter and this is no more then a Premonition and put no Obligation upon the Superiour until the second Charge which was Horning Neither did Sir William ever insist any further then the first Requisition The Lords found that the first Charge was sufficient in this case where the Superiour gave an Infeftment before the Expyring of the first Charge and before the second Charge could be given and thereby that a Superiour might prefer an Appryzer though posterior to a prior do what Diligence the prior could But they found that seing Sir William Dick had been silent until his Legal Reversion was Expyred and had not challenged the Defender who was in Possession and thereby had Excluded him from the benefit of Redemption competent to him if he had been found to be but the second Right within the Legal Therefore the Lords found Sir William Dicks Appryzing Redeemable by Corsbie within year and day after the Sentence Mr. Iames Hutcheson contra Earl of Cassils Eodem die MR. Iames Hutcheson having Charged the Earl of Cassils for his Stipend The Earl Suspends and alleadges first that the Charger had no right to the Whitsonday Term 1663. because
Wines at that time gave 20. pound Sterling and not the second because it was an exception of Compensation and relative to Writ The Lords sustained the first member of the quality but rejected the second and found it relevant to be proven by way of exception Goldsmiths of Edinburgh contra Robert Haliburton December 10 1664. THe Goldsmiths of Edinburgh having obtained Decreet against Haliburton as Heir to his Father He suspends upon this Reason that the Goldsmiths confirmed themselves Executors Creditors to his Father and must allow the Inventar which either they have in their hand or at least should have done Diligence therefore It was answered for the Executors that they being Executor Creditors are not lyable for Diligence having Confirmed but to their own behove for their payment and as Creditors may arrest apprize and do all Dilligence severally the one but prejudice of the other so may they Confirm 2ly They found that having Confirmed in Edinburgh whereas the Defunct lived and died within the Diocie of Glasgow that therefore their Title was null and therefore did not proceed And lastlie oppons their Decreet in foro The Suspender answered that they can never object against the nullity of their own Title 2ly All that time there was no Commissioriat Constitute for the Shire of Air where the man died and so Edinburgh was communis patria The Lords having Debated the general case whether Executor Creditors were lyable for Diligence waved the same but found that in this Case in respect of the questionableness of a Title they would not find them lyable upon their negligence Lyon of Muirask contra Sir Robert Farquhar Eodem die MVirask having pursued a Declarator of Redemption of the Lands of Balmellie against Sir Robert Farquhar Litisâontestation was made in the Cause wherein the Order was sustained proceeding upon an Adjudication against Sir Iohn Vrquhart as Heir to his Goodsire and it was offered to be proven that he died in the Right of the Reversion of this VVodset which was but base and holden of the granter for proving whereof his Charter was produced bearing the Barony of Craigfintrie and Balmellie per expressum At the advising of the Cause It was alleadged that the Defender having protested for Reservation contra producenda It is now instantly verified that the Grand-Father died not in the Right of the Reversion but that he was denuded by Disposition to his Son instructed by his Charter produced The Pursuer answered that he opponed the state of the Process And if such a Defense were now competent it ought to be Repelled because he hath Right from Sir Iohn Vrquhart who is Heir Served and Retoured to his Father in whose favours his Grand-father was Denuded and has declared that he consents to the Declarator upon that Ground and Renounces all other Right The Defender answered that the order having been only used upon the Adjudication from Vrquhart as Heir to his Grand-father if that be excluded albeit the Pursuer have another Right he must use the Order de novo and redeem thereupon 2ly Sir Iohn Vrquharts Right produced Renounces but does not Dispone any Right to the Pursuer The Lords having considered the state of the Process found that a Reply instantly verified is receiveable post conclusum in causa unless it were alleadged to have been known to the Proponer and dolose omitted by which the Pursuer might be put to a Duply suffering new Probation But the Lords found that the Charter produced bearing the Grand-father to be Denuded did not instantly verifie because it expressed not Balmellie and would not allow a Term to prove part and pertinent It was further alleadged by the Defender no Declarator till the Sums consigned were reproduced at the Bar especially seing it was offered to be proven that the Pursuer lifted them himself and he being at the Bar it is instantly verified The Lords sustained the same and Declared the Sums being Reproduced before Extract and that the Pursuer shall be lyable for Annualrent or the Wodsetter shall retain the Duties effeiring thereto Lord Rollo contra His Chamberland December 13. 1664. THe Lord Rollo having pursued his Chamberlain for Intromissions conform to a particular accompt libelled The Defenders have compeared offered to prove he was Discharged which was found relevant and now producing the same it proves but for a part whereupon the Pursuer craved Sentence for the rest It was alleadged for the Defender that there was nothing produced to instruct the Intromission The Pursuer answered that the Defender having made Litiscontestation upon a Discharge without denying the Intromission he has acknowledged the Libel and the Pursuer cannot be put to prove the same without inverting the Order and making two Litiscontestations in the same Cause The Defender answered that this being but an omission of the Advacats or Clerks of a thing palpable the Lords might repone the Defender The Lords adhered to the Act of Litiscontestation but referred to some of their number to move the Parties to what was equitable and it was thought that if the Defender would alleadge that he was not Intrometter for these particulars but that they were in the Pursuer or his other Chamberlains hands and were instantly verified by his oath it were receivable Bishop of the Isles contra Iames Hamiltoun Eodem die THe Bishop of the Isles pursuing Hamiltoun a Merchant in Edinburgh for his Teind Fish taken in the Isles which is a part of the Bishops Patrimony The Defender alleadged â that he being a Merchant and not a taker of Herring cannot be lyable for the Teind thereof no more then if one should buy Corns in the Mercat or out of the Barn-yard he could be conveened for the Teind It was answered for the Pursuer that it was the immemorial custom that the first buyer from the Fishers should be lyable to the Bishop of the Isles for the Teind of the Fish bought and for proving thereof produced a Decreet at his Predecessors instance against some Merchants in Edinburgh which Decreet did bear that in a former Decreet betwixt the same Parties the Bishops had proven immemorial Possession against the Merchants 2ly The instance holds not of buying Corns in the Mercat or Barn-yeard but if any body should buy the whole Cropt when it was upon the Land untaken off being in the Sheaves or Stoucks he would undoubtedly be lyable as Intrometter for the Teind so if any Merchant bought not upon the place where the Fishes were taken he was not lyable but buying the Fish fresh as they were taken in whole Boat-fulls and selling them there themselves such Merchants must be liable as Intrometters The Defender answered that the Immemorial custom was indeed Relevant but a Decreet against some few Persons could not prove it against others being inter alios actum But here there was only a Decreet bearing that there was a former Decreet in which that was proven The Lords sustained that member against these who bought the hering
on Saturnday the whole Cruives might stand open So that no Fish might be taken thereby according to the old Statute of King Alexander from the Even Sun on Saturnday till the Sun rising on Munday The Lords found that the Saturndays slop ought to be of the whole Cruives and that from Saturnday at six a clock till Munday at Sunrising 5ly They Insisted for the Hight of the Cruives and alleadged that the same ought to be no higher then the water in its ordinar Course neither the time of the Flood nor of Drought otherwayes they might build the same as high as they pleased and that it ought not to be builded perpendicular which will hinder the Salmonds up-coming but slopping from the Ground to the top The Lords considering that there was no particular Law as to the hight of Cruives and that âhir Parties had suffered the other to enjoy the Cruives above 40. Years that therefore the same should be uti possidebantur no higher then the old Cruives were 6ly They Insisted for the Liberty of the Midlestream beside and attour Saturndays Slop which is specially contained in the Acts of Parliament of King Alexander and King Iames the third and fourth and is renewed in the late Act of Parliament of King Charles the second The least quantity of which bears That five foot of the middle Stream must be constantly free It was answered 1. That the old Acts anent the midle Stream were wholly in desuetude and were in effect derogate by the Act of King Iames the sixt anent Cruives which ordains the Saturndays Slop to be keeped but mentions not the midle Stream And as for the late Act of Parliament it was Impetrat by these same Parties and never past in Articles or noticed by the Parliament but as an ordinar Confirmation It was answered that there was no prescription of publick Rights against standing Laws and albeit the desuetude of such Laws could be effectual yet the late Law Revives and Confirms them all per expressum which is not a particular Confirmation bearing mention of any particular Partie or particular Right but as a general Confirmation of general Laws anent all the Cruives in Scotland The Lords considering that the midle Stream has been long in desuetude and that this late Ratification was past without notice therefore before answer They Ordained the Parties to adduce Witnesses whether the midestream was accustomed in any Cruives in Scotland and whether the same would be beneficial or hurtful to the Salmond Fishing of the Kingdom in general and whether it were destructive to the Cruives in Common and likewise they gave Commission to examine the Witnesses hinc inde whether their new Cruives were builded upon challes or they otherways builded then the former Cruives to the prejudice of the Fishing above in the water George Hutcheson contra Dickson of Lonhead Eodem die GEorge Hutcheson pursues Dickson for a Sum of moneyâ and for the Annualrent since the denunciation of the Horning Whereupon the Defender answered that the Horning was only at the Mercat Cross of Edinburgh where the Defender dwelled not and so was null and could not give Annualrent It was answered that albeit such Hornings be not sufficient for an Escheat yet they are sufficient for Caption and so are not null and therefore Annualrents having so much ground in equity and by the civil Law being due ex mora such denunciations should be sufficient for Annualrent The Lords found such Hornings null and would not allow Annualrent Logan contra Galbraith Eodem die LOgan charges Galbraith to remove from a House who Suspends and alleadges that she is Served and Kenned to a Terce of the House which Terce she brukes pro indiviso with the two thirds The Charger answered the Reason ought to be repelled because albeit the Defense pro indiviso be relevant against such who can obtain division It being their own fault that they do not first divide or they pursue Removing but where it is a House being unum tenementum indivisibile the Heir or Successor of the Husband who has two thirds and continues in his Possession as well as the Relict in her third ought to be preferred in the Possession quia majus trahit minus The Lords found the answers relevant to elide the Reason and decerned the Relict to remove with this quality that if the Feear did not dwell in the House himself the Relict should be preferred giving as much Mail as any other Tennant and giving Caution for the two part Lairds of Berfoord and Binstoun contra Lord Kingstoun Ianuary 21. 1665. BErfoord and Binstoun pursues the Lord Kingstoun for Spuilzie of certain Corns he alleadged absolvitor because he Legally drew the same as their Teynd by vertue of his Tack from the present Minister and Inhibition thereon It was answered First That was not sufficient summarly to draw the Defenders Teynds unless there had been a Sentence on the Inhition which is but as a warning and so must not infer Removing brevi manu ad vitandum tumultum 2ly If he had Legally pursued them for a Spuilzie they would have alleadged and now alleadge that they have Tacks standing from the Minister for the time who though deposed yet lives and all incumbents Tacks serve during their natural life and no Tack from the next incumbent Prejudges during the life of the former conform to an expresse Act of Parliament The Defender duplyed that albeit an Act of Parliament required removing not to be summarly in Lands it did not so in Teynds 2ly The Pursuers Tacks are null without consent of the Patron The Pursuer triplyed that they are standing cled with seven years possession and their Tacks are subscribed by the Patron Quadruplyed he was not then Patron but was standing Fore-faulted unrestored Quadruplyed it is sufficient coloratus Titulus cum possessione till the Reduction And the Lord Bothwells Son Patron was after restored whereby it revived The Lords repelled the Defense in respect of the Pursuers Tacks and found the Defender might not brevi manu intromet there being any pretence of Title but they desired the Pursuer to restrict to wrongous intromission and without Oath in litem Sir John Scot and Walter Scot contra Sir John Fletcher Eodem die WAlter Scot as being Assigney by Sir Iohn Scot of Scotstarvet to an Atlas Major of the late Edition pursues Sir Iohn Fletcher for delivering thereof as belonging to the Pursuer and now in his hand The Defender answered non Relevat unlesse it were condescended quâ Titulo for if it came in the Defenders hands by emption or Gift it is his own and in mobilibus possessio presumit Titulum seing in these Writ nor Witnesses uses not to be interposed and none can seek recovery of such unless he condescend quo modo desijt possedere else all commerce would be destroyed and who ever could prove that once any thing was his might recover it per mille manus unless they instruct their
title to it 2. Though it should be condescended that they were lent yet it must be proven only scripto vel juramento being a matter above an hundred pound The Pursuer answered that in liquid Sums or Promises Witnesses are not receivable above that Sum but in corporibus or facts as in bargains of Victual made and delivered Witnesses are sufficient though for greater Value The Lords found the Pursuer behoved to condescended upon the way the books was delivered and found it probable by Witnesses Mr. William Kintor Advocat contra John Boyd Baillie in Edinburgh Eodem die MR. William Kintor and Iohn Boyd having both adjudged the Lands of Mountlouthian pursue mutual Reductions of each others Rights Mr. Williams Right was upon a Decreet cognitionis causa against the Appearand Heir renuncing against which Iohn Boyd alleadged that the Adjudication was null proceeding upon a null Decreet cognitionis causa First In so far as it was lybelled at the instance of Kintor as Assigney by his Brother who was Heir to his Father and Execut-Executor and neither Retour nor Testament produced and so was null for want of probation The Pursuer answered that he had now produced in supplement of the Decreet the Writs The Lords sustained the Decreet only as ab hoc tempore 2ly Boyd alleadged that the Decreet cognitionis causa proceeded on six hundered merks which was Heretable by Infeftment and contained Clause of Requisition and no Requisition produced The Lords found the Decreet null pro tanto and to stand for the rest being upon diverse Articles 3ly Boyd alleadged that the said Decreet ought to be Reduced in so far as it proceeded against the Cautioner of a Tutor for payment of the Annualrent of his Pupils money during the Tutorie and for the Annualrent of that Annualrent a tutâla finita because the Tutor had uplifted at least ought to have uplifted and imployed the same for the Pupills behove ex officio It was answered that albeit Tutors are oblidged for their Pupils Rent which are in Tennents hands yet not for the Annualrent of their Money being in secure hands then and now if the Tutor had lifted it it would have been lost he being broken and the Cautioner also and the Debitors being great men as the Marquess of Hamiltoun and Lord Burghlie they would easily have Suspended and lost the Pursuers pains The Lords found that Tutors were oblidged to uplift their Pupils Annualrents though the Creditors were secure and to imploy them for Annualrents but not for each year they were due but ante finitam tutelam because though he had them he was not oblidged every year to imploy them severally and so sustained the Decreet 4ly Boyd alleadged that the years of the Tutorie ought to have been proven which was not and so the Decreet is null The Lords sustained the Decreet seing it was lybelled in communi forma unless it were alleadged that some of these years were post sinitam tutelam here a Testificat of the Pupils age was produced Lord Borthwick contra Mr. Mark Ker. Ianuary last 1665. THe Lord Borthwick pursues a Reduction ex capite inhibitionis of all Rights made by Sir Mark Ker to Andrew or Mr. Marks Ker of Moristoun of certain Lands The Defenders alleadged no Process because none to represent Sir Mark Ker were called who being bound in warrandice to the Defenders ought to be called whereas of old Processes sisted till warrands were first discussed so now the warrand ought at least to be called The Pursuer answered that he was not craving Reduction of Sir Marks own Right but of Moristouns Right granted by Sir Mark who was common Author to both And as to the warrandice the Defender might intimat the plea if he pleased The Lords found no Process till the warrand were called Alison Kelloâ contra Pringle Eodem die ALison Kello pursues a Reduction against the Lairds of Wadderburnâ and Pringle and craves Certification It was alleadged for Pringle no Certification because he was minor non tenetur placitare de Haereditate Paterna The Pursuer answered primo non relevat against the Production but the Minor must produce and may alleadge that in the Debate against the Reason 2ly Non constat that it is Hareditas Paterna and therefore he must produce at least his Fathers Infeftment 3ly All he alleadges is that his Father had an Heretable Disposition without Infeftment which cannot make Haereditatem Paternam else an Heretable Bond were not Reduceable against a Minor or an Appryzing and Tack 4ly Albeit the alleadgeance were proponed in the discussing of the Reason yet the Reason being super dolo metu upon which the Defenders Original Right was granted and not upon the poynt of Preference of Right the brocard holds not in that Case as it would not hold in Improbation in casu falsi The Lords found that the Defender ought to produce his Fathers Infeftment and that a naked Disposition would not be sufficient which being produced they would sustain the Defense quoad reliqua against the Production but that they would examine Witnesses upon any point of fact in the Reason to remain in retentis that the Witnesses might not die in the mean time without discussing the Reason but prejudice of their Defenses Anderson and Proven contra Town of Edinburgh Eodem die ANderson being Creditor to Proven arrests in the hands of Gairdner all Sums due by him to Proven and thereupon pursues before the Commissaries of Edinburgh Gairdner gives his Oath that he is Debitor to Proven no way but for the Tack Dutie of the Customs of Edinburgh whereunto he was Sub-tacks-man to Proven conform to his Bond produced whereupon the Commissaries decerned Gairdner Suspends on double poynding It was alleadged for the Town of Edinburgh that the Sum in question being a Sub-tack dutie they had the common priviledge of all Masters against their Tennents and Sub-tennents that they might pursue either of them as they pleased without an Arrestment or any Diligence and were alwayes preferable for their Tack-dutie to any other Creditor of the principal Tacksman It was answered that Custom was not in the case of Rents of Lands wherein their is tacita hipotheca and that the principal Tacks-man was only their direct Debitor and the Sub-tacksman paying to the Principal Tacksman or which is equivalent to his Creditor is for ever free and the Town of Edinburgh hath secured themselves by taking Caution of the Sub-tacksman The Lords found the Town of Edinburgh preferable for their Tack-dutie and that they had immediat Action against the Sub-tacksman unless he had made payment bona fide before that they might exclude any other Creditor of the Principal Tacks-man for their Tack-dutie George Baptie contra Christian Barclay Eodem die CHristian Barclay having pursued George Baptie before the Commissares of Edinburgh for Solemnizing Marriage with her because he had gotten her with Child under promise of Marriage as was instructed by his Bond produced
obtained Decreet against him he Suspends and raises Reduction on this Reason that his Bond was vitiat in substantialibus by ocular inspection 2. That it was Conditional so soon as he was in readinesse 3ly That the Charger threatned she would drown her self for preventing whereof he had granted this Bond. 4ly That after the granting thereof she had carried her self unchastly and born another Bairn albeit it cannot be alleadged that ever he co-habited or conversed with her at all after this Bond which as it would dissolve the Marriage though it were Solemnized multo magis should it hinder the Solemnization The Charger answered to the first oppons the Bond wherein albeit there be three or four words delet in that place thereof oblidging him to Solemnize yet the acknowledgment of the Childs being gotten under promise of Marriage is clear and sufficient by it self To the 2. There is nothing alleadged that the Suspender is not in readiness To the 3. non relevat there being neither vis nor metus To the 4th non relevat because there being a second Child born after this Bond which constituts the essentials of a Marriage the Child is presumed to be the Suspenders nam Pater est quem matrimonia monstrant and it cannot be alleadged or proven that the Child belongs to any other or that the Charger used any evil carriage with any other The Lords having considered the Case found that the presumption was not sufficient unless it had been a formal Marriage and therefore Ordained the Charger to instruct the second Child was the Suspenders and if there had been any familiarity betwixt them since the Bond. Kirktouns contra Laird of Hunthill Ianuary ult 1665. TWo Sisters called Kirktouns having obtained Decreet against the Laird of Hunthill for their Mothers Executrie who left Hunthill her Brother and two other Tutors to her Children in so far as concerned the means left them by their Mother Hunthill Suspends and raises Reduction on this Reason First That the only ground of the Decreet being a Confirmed Testament bearing That Hunthill compeared and made Faith and accepted the Office of Tutory this cannot be sufficient of it self to instruct he was Tutor Seing Acts of inferiour Courts prove not in any thing but in points of form of Process which are ordinary âbut in alijs prove not without a Warrand and therefore unless the Warrand of this acceptance were produced it cannot prove more then an Act of Tutorie or Curatrie or Cautionrie will prove without its warrand and therefore now they crave Certification against the same 2ly Neither their Subscription to the Act nor the Principal Testament it self can be found though the Registers of that Commissariot be searched and others about that time found neither can it be astructed with the least Act of medling any way 3ly A mother cannot name Tutors but the Father only it being Patriae potestatis It was answered that albeit in Recenti the warrands of such Acts ought to be produced or they are not effectual with out the same yet it being thertie seven years since this Confirmation after so may troubles the Chargers are not oblidged to produce the Warrands being such inconsiderable Litle Papers as they are but they must be presumed that they were so done as is expressed in the publick Record seing this Process has lasted these twvelve years and before nor since till within a year no mention thereof It was answered that there was no prescription run during which if at first the Chargers were oblidged to produce they are still so unless they could fortifie and astruct the truth aliunde and their silence saith nothing because it was the Chargers fault that pursued not till within these twelve years whereas if they had pursued timeously the Suspender would then have pursued a Reduction It was answered they were Minors in the Suspenders own house the former time who would not have keeped and intertained them at all if he had not known of the Tutory and that they had means The Lords found that this naked Testament was not sufficient to astruct the acceptance without further adminicles Elphinstoun of Selmes contra The Lord Rollo and the Laird of Niddrie 1 February 1665. THe Lord Rollo being addebted in a Sum to umquhil Mr. David Anderson of Hill Margaret Anderson his Daughter gave a Procuratorie to intromet with all Papers and to uplift all Sums belonging to her in Scotland to Iohn Anderson whereupon Iohn Anderson discharges the Lord Rollo and takes a new Bond from him and assignesit to Niddrie Thereafter Selmes getting Assignation from the said Margaret Rollo Suspends on double Poynding Selmes alleadged that he as Assigney had Right to the Sum. It was answered that Rollo was discharged by the Procurator before the Assignation It was answered primo that the Procuratory was null because it wanted the Designation of the Writer and Witnesses 2ly It was offered to be improven as false and fenzied It was answered to the first that the Procuratory was made in Ireland secundum consuetudinem loci where designation of Witnesses is not required but a writ being Sealed Subscribed and delivered before Witnesses albeit they be not designed the writ is effectual To the second the Lord Rollo having made payment bona fide to a Procurator albeit the Porcuratory should be improven the Debitor not being accessory but paying bona fide could not repeit otherwayes all commerce would be marred and no body will be secure to pay to any Assigney or Procurator but as payment made bona fide to them that have no Right is relevant only because it is done bona fide and necessarly so must it be good though they have forged the Procuratory It was answered that payment was not yet made but only a new Bond granted and that it could not be bona fide seing the Procuratory wanting the ordinar Solemnity of Witnesses designed might have given just ground of doubt and the Debitor was not to have payed without Sentence The Lords repelled the first alleadgeance and sustained the Writ according to the custom of Ireland being Nottour to themselves As to the other point the Lords did not decide in it till it appeared whether Niddrie would prevâââ upon the new Bond and make it equivalent to payment but they thought that payment made bona fide would be sufficient albeit the Writ were improven where there was no ground to doubt Sir John Fletcher Supplicant February 3. 1665. SIr Iohn Fletcher having bought the Lands of Crainstoun and finding that there was an Appryzing to be deduced thereof for his Authors Debt which might cost him trouble he craved Assessors to be appointed by the Lords who considering the matter amongst themselves It carried by the plurality of one or two to name two Advocats Assessors but many were on the contrary conceiving the example of it would be of great inconveniency seing Appryzings were not with continuation of dayes and if Parties compeared and alleadged they
the exception of the Act Salvo Jure Scot of Thirlston contra Scot of Braidmeadow Eodem die SCot of Thirlston having right to the Teynd of midshef and pursues the possessor for 24. Years bygone and in time coming who alleadged absolvitor because these Teynds are allocal to the Church coââorâ to a Decreet of locality produced bearing such a Stipend and locatting so much of it and for the restâ that the Minister had the Teynds of midshef It was alleadged that this could not instruct that those whole Teynds were allocal but so much as made up that rest and the Teynd is worth twice as much and therefore the Minister had but the twenty Lamb for the Teynd which is but half Teynd and was lyable to the Pursuer for the rest It was answered that Teynds are secundum consuetudinem loci and if Tyends had never been payed none would be due and if the twenty Lambs was all ever payed they could be lyable for no more The Lords found that before the intenting of the cause they would not allow any more nor then what was accustomed to be payed unless the Pursuer offer him to prove that there was a Tack or use of payment of more which they would allow accordingly Sir William Thomson contra Town of Edinburgh February 14. 1665. THe Magistrats of Edinburgh having deposed Sir William Thomson Town Clerk from his Office on this ground That a Tack of the new Imposition and Excise being set to their Tacks-men which was to have been subscribed by him as Clerk for the Deacons of the Crafts he had given it up to the Tacks-man and had not taken their subscription thereto neither to their own double nor taken another double for the Town albeit the Tack duty was fourscore thousand merks yearly for two years and that it being an uncertain casuality the value of it was most difficult to prove and not but by the Tacks-mens own Oath Sir William raised Reduction on several Reasons especially that the sentence was unjust in so far as it was the puting on of an exorbitant and incommensurable punishment of deprivation from an Office of so great Value upon a Fault of meer negligence or escape and that before the Sentence the Tack-dutie was all payed but four monethes and now all is payed and that Sir William was still willing for to have made up the Towns damnage It was answered that here was no Process to put a punishment commensurable on a Fault but Sir William having by the free Gift of the Town had so profitable a place for his life upon consideration of his Fidelity and Diligence there is implyed in it as effectualy as if exprest that it is ad vitam aut ad culpam so that the cognoscing of the Fault is the termination of the Gift freely given so if their be a fault Justly found by the Town they might well take back their Gift they gave upon that condition implyed for it was not the loss in eventu nor dolus in proposito that made such a Fault else all negligences imaginable would not make it up though a Servant should leave his Masters House and Coffers open if nothing happened to follow yet the Fault was the same and could not be taken away by making up the damnage but here was a Fault of knowledge and importance for Sir Wilâiam could not by meer negligence nor ommission give away the Tack to the Tacks-men and neither see them subscribe their own double or any other nor subscribe himself this Fault was likeas in his Office he had a particular gratuitie as Clerk to the excise The Lords repelled the Reason of Reduction and found the Sentence not to be unjust upon this ground because they thought that Sir William being a common Servant who by his Act of admission had specially engadged never to quarrel the pleasure of the Magistrats they as all Masters have a latitude in cognoscing their Servants Faults wherein though they might have been wished to forbear rigor yet having done it by their power as Masters over their Servants The Lords could not say they had done unjustly but found that the committing such a Fault terminat their free Gift being of knowledge and importance but found that if it could be proven that the Tack was duelie subscribed and lost thereafter which was not of knowledge but of meer omission incident to any Person of the greatest diligence they would not find that a sufficient ground to depose him Bishop of Dumblain contra Earl of Cassils February 15. 1665. THe Bishop of Dumblain pursues the Earls Tennents for the Teynds of the Abbacy of Corâregual as a part of his Patrimony annexed thereto by the Act of Parliament 1617. The Defender alleadged no Process till the Act of Annexation being but an Act unprinted were produced 2ly Absolvitor because the Defender had Tacks from the King in Anno 1641. And by vertue thereof was in possession and could pay no more then the Duties therein contained till they were reduced It was answered to the first it was nottour and if the Defender alleadged any thing in his favour in the Act he might extract it 2ly The Defender could not claim the benefit of his Tack 1641. because the Bishops are restored to all they possessed in Anno 1637. And so not only Right but Possession is restored to them as then which is as sufficient an interruption by publick Law as if it were by Inhibition ot citation Which the Lords found relevant being in recenti after the Act and never acknowledged by the Bishops Boyd of Pinkill contra Tennents of Cairsluth Eodem die PInkill as Donatar to the waird of Cairsluth pursues removing against the Tennents whose Master compears and alleadges that the Gift was to the behove of the Minor his Superiour who as representing his Father and Guidsire was oblidged in absolute warrandice against Wairds per expressum THe Lords considering whether that could be understood of any other Wairds then such as had fallen before the warrandice or if it could extend to all subsequent Wairds of the Superiours Heir and so to non-entries c. which they thought hard seing all holdings were presumed Waird unlesse the contrary appear and the Superiour could not be thought to secure against subsequent Wairds unlesse it were so specially exprest all Wairds past and to come Yet seing it was found formerly that if the Superiour take such a Gift and be bound in warrandice that the same should accresce to the Vassals paying their proportional part of the expense and composition they found the Defense that this Gift was to the behove of the Superiour relevant ad hunc effectum to restrict it to a proportional part of the expense Hellen Hepburn contra Adam Nisbit February 16. 1665. HEllen Hepburn pursues Adam Nisbit to remove from a Tennement in Edinburgh who alleadged absolvitor because he had a Tack standing for Terms to run It was replyed that the Tack bore expresly if two
warrandice of an Assignation made by the said Collonel to Sir Arthur dowglass of whittinghame The Defender alleadged absolvitor because the Assignation was only made in trust which he offered to instruct by many Adminicles of which these were the chief that by the Witnesses adduced it was cleared that this Assignation remained in the hands of one Cranstoun who was filler up of the date and Witnesses therein that it was never delivered to Whittinghame and that the Right Assigned was still retained by the Collonel who thereupon obtained two Decreets before the Lords and uplifted the Money from Sir William Thomson Debitor Cranstoun who keeped the Assignation being an Agent in the house never questioning the same nor Sir Arthur or any of his owning the same for the space of 20 year till of late Kingstoun gave 300. merk to get the Assignation out of the hands of one Ienkin who got it from Cranstoun and that the Money was to have been presently imployed for the levying of Souldiers for a French Regement whereof Fullertoun was Collonel and Sir Arthur Livetenant Collonel there were also two Letters of Sir Arthurs produced by the Collonel acknowledging the trust thereof the one was alleadged to be holograph but nothing adduced to prove the same but three other writs subscribed before Witnesses for comparing the Subscriptions therein with the Subscriptions of the Letters The Pursuer answered that so solemn a Write subscribed before Witnesses could not be taken away by Presumptions or Witnesses but either by Writ or Oath of Partie and as to the Presumptions adduced there are stronger Presumptions with the solemn Writ then against it Fullartoun a most circumspect man would never have given an Assignation in trust without a Back-bond and that Sir Arthur died shortly thereafter Anno 1642. and Cranstoun died Auno 1645. And Whittinghams Successors were strangers to the business and the missives adduced were not proven holograph and were suspect The Lords found the Defense founded upon the foresaid adminicles relevant and proven and therefore assoilzied Sir George Mouat contra Dumbar of Hembrigs Eodem die SIr George Mouat as Assigney to a Tochar of 5000 merk whereunto umquhile Dumbaith was contracter pursues Hemprigs as representing him for payment The Clause of the Contract bore That the Husband should have the Tochar out of the first and readiest Goods of the wifs Father and that he should have Annualrent therefore but did not expresly oblidge Dumbaith to pay and therefore he is not lyable personally unless he had intrometted with the Defuncts means The Lords found the Defender lyable seing the Clause being in re dotali it behoved to be interpret cum effectu and if it did import only a consent not to hinder the Husband it signified nothing and because in Cases conceived passivè where it does not appear who is oblidged the Contracter is understood oblidged Campbel contra Campbel Eodem die A Wife pursuing her Father in Law for imployment of her Tochar conform to her Contract He alleadged absolvitor because the Clause bore expresly that so soon as the Tochar was payed compleatly he should imploy it and so much more for the Wifs Liferent use so that unless it were shown that the Tochar was compleatly payed he was not oblidged The Pursuer answered that she was not oblidged to pay the Tochar but her Father and if any neglect or defect were therein it was not her fault but the Defender ought to have done diligence debito ââmpore and therefore albeit the Tochar were not payed at least he must imploy his own part proportionable to what of the Tochar he hath received Which the Lords found relevant and if the Pursuer had not restricted her self to that proportion they would have sustained it simply for all the Defnders own part Kennedy contra Weir February 23. 1665. KEnnedy of Auchtifardel having charged William Weir upon a Bond of 300 merk He Suspends and raises Reduction upon Minority and Lesion The Charger answered Minority takes no place where the Minor is in dolo as si minor sein majorem dixerit but in this Bond the Suspender expresly acknowledged himself to be then Major The Suspender answered that eadem facilitate that he was induced to subscribe the Bond he might be induced to insert that Clause which therefore cannot prove unless it were otherways proven that he did induce the Charger to lend him Money on that ground The Lords found his acknowledgement in the Bond was sufficient unlesse he instructed that he was induced to insert that Clause not on his own motion or that the Charger knew that he was Minor or was oblidged to know the same by being his Tutor or Curator or might have visibly known the same by the sight of his age and thought it not reasonable to put it to the Debitors oath to disappoint the Creditor Jack contra Pollock and Rutherfoord Eodem die MArion Rutherfoord Married David Clerk and had no Contract of Marriage with him but he having acquired a little ruinous Tennement took it to her and him in Conjunct-fee and in the time of the Plagueâ he provided her to the Annualrent of 5000 merk His Heirs raises Reduction of the provision as being in lecto agritudinis after he had keeped his house upon suspition of the plague of which he died It was alleadged for the said Marton that keping the house upon suspition of the plague could not be as in lecto aegritudinis unless it were proven that he was infected with the Desease before the provision was granted 2ly Even in that Case Defuncts are not hindered to give Liferents to their Wives for which there is a natural obligation according to Craigs opinion The Lords repelled the first alleadgence but found the second relevant in so far as might extend to a competent provision to the Wife and therefore having examined many Witnesses hinc inde upon the Estate of the Husband and the Tochar and frugality of the Wife and finding his means did consist in a Tenement worth 500 merk by year beside that inconsiderable Tenement wherein she was Infeft they restricted her Annualrent which came to 300 merk to 123. lib. which was about the Terce of the Tenement albeit Terces of Houses within Burgh are not due In this Process the VVife and her second Husband aâd having repaired the other little Tenement which was ruinous and builded it much better then ever it was for which they pursued for the Reparations The Lords found that they ought to have the Reparations decerned not only in so far as is necessary but in quantum the Heir will lucrari by getting greater mail to be payed at the Wifes death she leaving the Tenement in as good case as now it is Sir James Mersser of Aldie contra William Rouan February 24. 1665. SIr Iames Mersser of Aldie as Donatar to the Gift of ultimus haeres of umquhil Iohn Rouan pursues a Reduction of the Retour and Service of William Rouan Served
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerââ could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâsa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâo omissis
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aânualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. ãâ¦ã pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâs Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâthousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debât The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because
being for nineteen years without consent of the Patron The Defender answered that albeit both Parties were in acquirenda possessione yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat and therefore unless these Teinds have been Transmitted from the Parson of the Paroch by long Possession or Mortification they are his and the Kings Gift alone cannot take them from his but here the Parson has been in Possession by Setting the Tack produced which is sufficient as to Possession albeit it were null by Exception as it is not and the nullity thereof is only competent to the Person of the granter and not to this Pursuer The Lords found the Kings Gift and Decreet conform with Institution and Collation was not sufficient unless either the Mortification of these Teinds or the Prebenders Possession were instructed Mr. Walter Caut contra Iames Loch Eodem die MR Walter Caut having pursued Iames Loch and his Mother as Tutrix for her Interest for the Mails and Duties of some Appryzed Lands and the quantities being referred to the Tutrix Oath she refused to Depone alleadging that she had forgotten the quantities whereupon the Pursuer craved her to be holden as confest upon the Rental given in by him as if she had acknowledged the same The Lords found she could not be holden as confest being not the Party but Tutrix but they found that she might be forced to Depone by Horning and Caption as other Witnesses Alexander Monteith contra Anderson Iune 28. 1665. THere being mutual Reductions betwixt Monteith and Anderson the former having Right to an Appryzing led in Anno 1619. and the other Mr. Iohn Anderson having adjudged in Anno 1656. Mr. Iohn Anderson insisted on this Reason that Monteiths Apprizing proceeded was on a Sum of 5000. Merks due by Iames Nisbet the common debitor to Gilbert Gourlay after that Iames was Rebel at Mr. Iohn Andersons authors Instance after which no Bond granted could prejudge the other Creditor having used Diligence before but the Bond is null by the Act of Parliament 1621. against Bankrupts It was answered for Monteith that that Act was only against Fraudulent Dispositions between confident Persons without Cause onerousâ but here a Bond of borrowed Money was onerous and no man was thereby hindered to borrow Money Anderson answered that the Narrative of the Rebells Bond bearing borrowed Money could not instruct against a Creditor using prior Diligence This the Lords Repelled Anderson insisted upon this Reason that Gourleys Bond was granted by Iames Nisbet Iames and William Arnolds all Conjunct Principals without a Clause of Relief and this Bond was assigned by Gourley with this express Provision that no Execution should proceed thereupon or upon the Bond or Inhibition against the Arnolds and so if the Assigney had been pursuing Iames Nisbit for all he might have answered that the Assigney had accepted his Assignation with this provision that Iames Nisbet could not use Execution against the other two Co-principals and therefore he being excluded from his Relief could be only lyable for his third part for he would not have subscribed the Bond but upon consideration of his Relief Monteith answered that all the three principals being bound conjunctly and severally the Creditor might renounce all Execution against two of them and yet crave the whole from the third and there was no more done in this case and albeit there be no Clause of mutual relief exprest yet hoc in est de natura rei So that albeit Nisbet by vertue of the Assignation thought it had been transferred to him could not have pursued the two Arnots yet by the obliegement of mutual Relief implyed he might not as Assigney but as coreus debendi Anderson answered that if the Clause had born only a Provision that no execution should pass upon the Assignation it might have been consistant but it bears that no Execution should pass upon the Assignation or Bond. The Lords found that the Obliegement of mutual Relief was implyed where parties were bound conjunctly and severally albeit not exprest and that the Provision related only to the Bond quantum ad creditorum and did not restrict the implyed obliegement of the Co-principal and therefore repelled this Reason also Robert Keill contra Iohn Seaton Iune 28. 1665. GEorge Seaton as principal and the said Iohn Seaton his Cautioner having granted Bond to Robert Keill and being Charged thereupon both did suspend and having alleadged payment they succumbed and were Decerned Iohn Suspends again and raises Reduction upon minority and lesion The Charger answered First That this Reason was competent and omitted in the former Decreet 2ly That proponing payment did homologat the Debt as if an Heir proponed payment he would not be admitted fo renounce thereafter or to deny the passive Title The Suspender answered that the former Process being in a Suspension nothing was competent but what was instantly verified and so minority and laesion was not competent The Charger answered that the Decreet of Registration was turned in a Libel as being Registrat at the Assigneys Instance not having Intimat during the Cedents Life and at that time the Suspender had raised his Reduction and so it was competent The Suspender answered that he was not oblieged to insist in his Reduction and that the reasons thereof were not proper even in an ordinary Action but only by a Reduction It was furder alleadged that competent and omitted took no place in Suspensions The Lords had no regard to the last alleadgence but repelled the alleadgence upon homologation and upon competent and omitted in respect that minority and laesion is neither competent by way of Suspension or exception but by way of Action of Reduction wherein the Suspender was not oblieged to insist Iames Pitcairn contra Isobel Edgar Iune 28. 1665. UMquhil David Edgar by his Contract of Marriage provided 4000. merks to be payed by him and his Heir of the first Marriage which failling any other his Heirs to the Bairns of the second Marriage The portion of the Daughters payable at their age of 18. and the Sons at 21. with five merks yearly of annualrent after his death for the Childrens subsistence Isobel one of the Children having married after her Fathers death Iames Pitcairn her Husbands Creditor pursues for the sum as belonging to the Husband jure mariti It was answered that the sum was Heretable bearing Annualrent and the Term of payment of the Annualrent was come before the marriage and therefore it did not belong to the Husband jure mariti It was answered that it was not properly an Annualrent but an aliment of five percent and that the Term of payment of the Annualrent was after the Act of Parliament 1641. declaring such Bonds moveable and albeit the Fisk and Relict be there excluded yet the jus mariti is not but is only added by the Act 1661. The Lords found that seing this Provision bear Annualrent whether more or less and that the marriage was
a Compt by the Debitors own hand writ though not subscribed has been found probative The Lords found that if this had been a current Compt-book it would have been probative but having been only some feu scheduls of Paper found it not probative without subscription albeit it was acknowledged by the Oath to be the deponents hand writ John Boyd late Baillie in Edinburgh contra Mr. William Kintore Iuly 4. 1665. THere being mutual Reductions betwixt Mr. William Kintore and Iohn Boyd as to the Rights of the Lands of Moutlothian Iohn Loyd deriving Right from Mr. Robert Logan to whom Logan of Coatfield with consent of Mr. Iames Raith and who for all Right he had to the Land of Mounlothian disponed the same And Mr. William Kintore having Appryzed upon a Decreet against Coatfield as Cautioner for a Tutor and upon the Act of Caution inhibited It was alleadged for Iohn Boyd that whereas by a former Interlocutor the day of he having objected against Kintor's Decreet that thereby the Tutor and his Cautioner were found lyable to uplift the Annualrent of Sums that were in the hands of secure Creditors which the Tutors had not uplifted and to be lyable for Annualrent post finitam tutelam now he produces a Decision out of Dury Iuly 18. 1629. Nasmith contra Nasmith whereby it was found that a Tutor having uplifted his Pupils Annualrent though very considerable was not lyable for any Annualrent therefore 2ly The reason of the Lords Decision then being that albeit the Tutor was not lyable to uplift and imploy the Annualrent every year as it was due yet he was lyable once in the Tutory but it is offered to be proven that he died two years before the Tutory expired in which time he might both have uplâfted this Annualrent and re-imployed it and therefore being prevented by death he ought to be free both of the Annualrent it self and of the Annualrent thereof The Lords having considered the Decision found it so short and not to hold forth fully the Case notwithstanding thereof they adhered to the former Interlocutor and found that Tutors are oblidged to uplift and once in their Tutory to re-imploy the Annualrents of the Pupil albeit the Debitor were secure but if the Case had been of Rents of Lands the Lords thought these ought to have been uplifted yearly and to be imployed on Annualrent but they found the second alleadgance Relevant not to free the Tutor of payment of the Annualrent it self though in secure hands because he ought to have uplifted it and had it ready but found him free of the Annualrent thereof there being a competent time in which he might have given it forth before the Pupillarity past if he had not been prevented by death but ordained Kintore to assigne to Boyd the Right of the Annualrent that he might recover the same from the Debitors It was further alleadged for Kintore that Coatfield the common Author his Disposition to Mr. Robert Logan Iohn Boyds Author was after Kintors Authors Inhibition It was answered that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior yet Mr. Iames Raith had a Disposition of the same Lands anterior who by consenting and joynt Disponing to Mr. Robert Logan the Lands of Mountlothian did in effect constitute him Assigney to his anterior Disposition which is now accomplished by the Adjudication adjudging the Right of the Lands from Coatfildâ Heirs and thereupon Infeftment has followed by precepts out of the Chancellary for supplying Coatfilds procuratory of Resignation which took no effect in his life It was answered that Mr. Iames Raiths Right being but a Wodset his consent cannot import the transmitting of his Right albeit he joyntly Dispond seing he transmits no part of the Sums in the Wodset and therefore does no more in effect but restrict his Wodset to the remanent Lands and consents that Coatfield should Dispone these Lands to Mr. Robert Logan and so it imports but non repugnantiam and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right Which the Lords sustained Mr. Walter Innes contra George Wilson Iuly 4. 1665. INnes of Auchbuncart being pursued as Heir to his Father upon all the passive Titles alleadged that his Father was denounced Rebel and his Escheat gifted and the Defender had Right or warrand from the Donatar before intenting of this Cause The Pursuer answered non relevat except the Gift had been declared and that the Defenders Intromission had been after Declarator and the warrand but the Intromission being anterior cannot be purged ex post facto The Defender answered that as the confirmation of an Executor excluds vitious Intromission had before the Confirmation ante motam litem so the Gift and VVarrand though without Declarator purges anterior Intromission ante motam litem Which the Lords found relevant Commissar of S. Andrews contra Boussi Iuly 4. 1665. THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Fathers Testament he Suspends and alleadges his Father had Disponed all his Moveable Goods and Gear to him and so nihil habuit in bonis and offered him to prove that he was in possession of the whole Goods before his Death It was answered the Disposition was but simulat in so far as it contained a power to the Disponer to dispose upon any part of his Moveables during all the days of his life and if such a Disposition were sustained there should never be another Testament confirmed and all people would follow this course which would not only exclude the Quot but keep the Means of Defuncts in obsâuro The Lords in respect of the generality of the Disposition and the Clause foresaid repelled the Reason George Dumbar contra Earl of Dundie July 5. 1665. GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 merks of Tochar provided by Craigs Sisters Contract of Marriage the Earl of Dundie Suspends on this Reason that he is but lyable for his half because they were not bound conjunctly and severally The Charger answered that he was bound as Cautioner and full Debitor which was sufficient Which the Lords sustained Mackie contra Stewart Iuly 5. 1665. JAmes Mackie as Assigney by Agnes Schaw conveens Stewart of Mains as as representing his Father who was Cautioner for imploying a Sum of Money to her in Liferent It was answered First the Contract is prescribed 2ly It bears these words that the Tochar being payed The Principal and Cautioner obligded them to imploy it upon security so that the obligation is conditional And if it be not instructed that the Tochar was payed the Defender is not lyable The Pursuer answered to the first contra non valentem agere non currit prescriptio she being a VVife cled with a Husband her not pursuing her own Husband or his Cautioner cannot prescrive her Right To the second The prescription is run against the Husband and his
Blank-bond had before the Arrestment seen the Blank-bond filled up and so had deponed or could depone that the time of the Arrestment the Debitor saw himself to be Debitor to another person filled up in the Blank than he for whose Debt it was Arrested for in that Case as the first Creditor that got the Blank-bond might have caused his Debitor retire that Bond and give a new one before any Arrestment so the showing of the filling up of the Blank was equivalent especially if the Debt could be proven no otherwayes but by the Deââtors Oath This Case was not debated nor was the hazard considered that the Debitors Oath might prefer one Partie to another nor was the case alike to a renewed Bond because a renewed Bond would bear a new date and different Witnesses that saw the new Creditors name filled up and would not depend upon the single Testimony of the Debitor Barbara Skeen and Mr. David Thors contra Sir Andrew Ramsay November 14. 1665. BArbara Skeen being provided by her Contract of Marriage with Umquhile David Ramsay to 18 Chalders of Victual or 1800 merks her Husband having acquired the Lands of Grange Muire worth 10 Chalders of Victnal she pursues Sir Andrew Ramsay as Heir to his Brother to make her up the superplus The Defender alleadged absolvitor because he offered him to prove that the said Barbara stood Infeft in the Lands of Grange Muire upon a Bond granted by her Husband which Bond bears In full satisfaction of the Contract of Marriage by Vertue of which Infeftment she having no other Right she had possest five or six years after her Husbands death and thereby had accepted that Right and had Homologat the same It was replyed that the Bond being a Deed of the Husbands a Clause foisted thereinto so far to the detrement of his Wife and the Infeftment not being taken by her but by an Acturney her possession cannot import Homologation thereof because Homologation being a Taâite consent is not inferred but where the Homologator cannot but know the Right Homologat and can do the Deeds of Homologation no otherwayes but by vertue of that Right neither of which holds here because the personal oblidgement in the Contract was a ground for the Wife to have continued her Husbands possession and would have excluded his Heirs if they had quarrelled and not only the Clause must be presumed to be without the Womans knowledge but the Bond it self and the Infeftment especially considering the simplicity of Wives and their confidence in their Husbands who if this were sustained would easily deceive them It was duplyed for the Defender that he offers him to prove that the Pursuer did not continue her husbands possession but did begin Possession her Husband being never in possession before his death and that she set two several Tacks expresly as Liferenter and the third with consent of Mr. David Thors her Husband being an Advocat and so she cannot be presumed to have been ignorant but on the contraire she must bepresumed to have known the Right and could never denominat her self Liferentrix by a personal oblidgement to Infeft her in so much Victual and Money without mentioning any Land in particular and her acceptance though to her detriment may be the more easily presumed because she had two Children surviving her Husband in whose favour the Restriction did accresce and her Husband did secure her in all that he had but now ex post facto the Children being dead she could not return upon Sir Andrew her Husbands Brother contrare to her Homologation The Lords sustained the Defense and Duply for they thought albeit ignorance might be presumed in a Wife de recente intra annum luctus yet she having continued for so many years and doing so many deeds expresly as Liferenter and that the Bond was not clandistinely lying by her Husband but in a third Parties hand who had taken the Infeftment they thought in that case ignorance was not to be presumed but knowledge Wat contra Russel November 16. 1665. JEan Wat being provided by her Contract of Marriage to certain Lands and Infeft therein the Contract contains this Clause that she shall Aliment the Bairns of the Marriage after the Fathers death and in case she marrie again she shall restrict her self to six hundred merks and the superplus shal remain to the Bairns for their Aliment hereupon she pursues Robert Russel and the other Tennents for the Mails and Duties of the hail Liferent Lands who alleadged 1. That she was restricted to six hundred merks and could crave no more especially now being married to a second Husband compearance was also made for the only Child of the Marriage who claimed the benefit of the superplus by vertue of the Clause in the Contract It was alleadged further for the Defenders that they were Creditors to the Husband before the Contract of Marriage and in their Tacks had a Clause bearing That they should retain their Tack duties while they were payed and upon their Bonds they had also Apprized from the Child as lawfully charged to enter Heir all Right he had to the Lands So that if the superplus belong to the Child proprio jure it now belonged to the Defenders as appryzers They had also raised Reduction of the Clause of the Contract in favours of the Children as being granted by a Father in favours of his own Children after Contracting of their Debt and so was fraudulent and Reduceable by the Act of Parliament 1621. Against Bankerupts It was answered for the Child that as for the Appryzing and Decreet against him as charged to enter Heir he had Suspended and raised Reduction and craved to be reponed and produced a Renounciation offering to renounce all Right he could succeed to as Heir to his Father but prejudice of this Aliment which belonged to him proprio jure as a Restriction granted to him by his Mother and as to the Reason of Reduction upon the Act of Parliament There was here neither Fault nor Fraud their being no Law to hinder a Husband to give his Wife what Joynture he pleased which was never compted in defraud of prior Creditors nor is their any Restriction or proportion thereof but as the Parties agree which is always sustained in favorem dotium matrimonij and the Wife might take what Liferent the Husband was pleased to give her there was nothing to make her to restrict her self in favours of her Children for an aliment with restriction is no Deed of the Father but of the Mother It was answered for the Defenders that the reason of Reduction stood relevant seing in this case there was manifest Fraud in so far as this Liferent was exorbitant and unproportionable to the Fathers Estate whose hail Lands being only worth 1000. merks and having nothing but the Tocher which was 6000. merks he Infefts his Wife in the hail and yet restricted her to 600. merks and provided the rest to his Children and
Registration of Seasines there is neither Law nor Favour since for posterior acquirers who might have known the prior Infeftments And therefore in Infeftments of Warrandice Lands the Possession of the principal Lands is accompted Possession of the Warrandice Lands neither is there any ground to oblidge a Person who takes a Feu of Lands to demand a more publick infeftment of the Warrandice Lands then of the principal It was answered that albeit the Narrative of the Statute mention Fraudful alienations yet the dispositive words are General that wherever an Infeftment hath been publick by Resignation or Confirmation and hath attained Possession year and day the same shall exclude any prior base Infeftment attaining no Possession and if the said Act were only to be measured by Fraud then if it could be alleadged and astructed that the first Infeftment though base was for a cause onerous and without Fraud it should be preferred which yet never hath been done And for the Practiques they meet not this Case nor the Act of Parliament because the posterior publick Infeftment had attained no Possession It was answered that now consuetude had both Interpret and Extended the foresaid Act for thereby posterior publick Infeftments though they be not for cause onerous or cled with Possession year and day are ordinarily preferred contrair to the tenor of the Statute and base Infeftments retenta possessione where the obtainer of the Infeftment is negligent are accounted Simulat presumptione juris de jure but where there is no delay nor ground of âimulation the base Infeftment is preferred whether the posterior publick Infeftment attain Possession for year and day or not The Lords having heard this Case at length and debated the same accuratly amongst themselves in respect they found no preceeding Decision whether base Infeftments of Warrandice where there was possession of the Principal Lands were valid or not against posterior publick Infeftments They found this base Infeftment of Warrandice valid against the posterior publick Infeftment The Infeftment in Warrandice being Simul with the Principal and not ex intervallo and being after the Act of Parliament 1617. but did not decide the Case to be of generall rule for Warrandice ex intervallo before the said Act. Grissell Seatoun and Laird of Touch. contra Dundas Ianuary 11. 1666. GRissall Seatoun and the Laird of Touch younger her Assigney pursues Dundas as charged to enter Heir to Mr. Hendrie Mauld for payment of a Bond of 8000 merks granted to the said Grissall by the said Mr. Hendrie her Son It was alleadged that the Bond was null wanting Witnesses It was Replyed That the Pursuer offered him to prove it Holograph It was duplyed that albeit it were proven Holograph as to the body yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died and so being granted in lecto aegritudinis cannot prejudge his Heir whereupon the Defender has a Reduction It is answered that the Reduction is not seen nor is there any Title in the Defender produced as Heir It was answered that the nullitie as wanting Witnesses was competent by exception and the the duply as being presumed to be in lecto was but incident and was not a Defense but a Duply The Lords Repelled the Defense upon the nullitie of the want of Witnesses in respect of the Reply and found the Duply not competent hoc ordine but only by Reduction and found there was no Title produced in the Reduction Executors of William Stevinson contra James Crawfoord Ianuary 12. 1666. THE Executors of William Stevinson having confirmed a Sum of 3000. and odd Pounds due by Bond by Iohn Ker to the said William and also by Iames Crawfoord who by his missive Letter became oblidged to pay what bargain of Victual should be made between the said Iohn Ker and Iohn Stevinson for himself and as Factor for William Stevinson And subsums that this Bond was granted for a Bargain of Victual It was answered that albeit this Bond had been in the name of William Stevinson yet it was to the behove of Iohn Stevinson his Brother who having pursued upon the same ground the Defender was Assoilzied and that it was to Iohns behove alleadged First That Iohn wrot a Letter to his Brother William to deliver up his Bond acknowledging that it was satisfied and that Iohn having pursued himself for the other Bond granted in place of this The said Umquhil William Stevinson compeared or a Procurator for him before the Commissars and did not pretend any Interest of his own neither did William during his Life which was ten yearsâ thereafter ever move question of this Bond nor put he it in the Inventar of his Testament though that he put most considerable Sums therein It was answered 1. That the presumptions alleadged infer not that this Bond was to Iohn Stevinsons behove because by Iames Crawfoords Letter there is mention made of several Bargains of Victual both with Iohn and William so that the Bond and pursuite at Johns instance might be for one Bargain and at Williams for another especially seing the Sums differ 2dly Writ cannot be taken away by any such Presumptions It was answered That if the Defender James Crawfoord had subscribed this Bond it could more hardly have been taken away by Presumptions but he hath not subscribed the Bond but only his missive Letter which is dubious whether it be accessory to this Bond or if that Bond was for this Bargain and therefore such a writ may well be âlided by such strong Presumptions The Lords found the Presumption Relevant and that they instructed the Bond was to Johns behove and therefore in respect of the ahsâlvitor at Crawfoords instance they Assoilzied William Dick contra Sir Andrew Dick. January 13. 1666. WIlliam Dick pursues Sir Andrew Dick his Father for a modification of his Aliment whereupon the question was whether Sir Andrew Dick himself being indigent and having a great Family of smal Children and the Pursuer having been Educat a Prentice whether the Pursuer should have a Modification The Lords considering the great Portion the Pursuers Mother brought and that he was a Person of no ability to Aliment himself by his industrie decerned Sir Andrew to receive him in his House and to entertain him in meat and Cloath as he did the rest or else two hundred merks at Sir Andrews option James Crawfoord contra Auchinleck January 17. 1666. THE Heirs of Lyne of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male did thereupon charge the Appearand Heir Male and upon his Renounciation to be Heir obtained Decreet cognitionis causa after which that Appearand Heir dyed and the Decreet being Assigned to Iames Crawfoord Writer he now insists in in a Summons of Adjudication containing a Declarator that he having charged the next Appearand Heir to enter to the last Appearand Heir against whom the Decreet cognitionis causa was
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. âcontra Earl of Kinghorn Ianuary 23. 1666. ãâ¦ã having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
1666. SIr Mungo Murray having by the Earl of Crawfords means obtained from the King a Gift of the Ward and Marriage of Frazer of Streichen his Nephew he did assign the Gift to Mr. Iames Kennedy and he to Heugh Dollas before it past the Scals and at the time that the Gift was past in Exchequer the same was stopt until Sir Mungo gave a Back-bond bearing that he had promised at the obtaining of the Gift to be ruled therein at the Earl of Crawfords discretion who by a Declaration under his hand declared that the Gift was purchast from the King for the Minors behove and that only a gratuity for Sir Mungo's pains was to be payed to him and that the Earl Declared he allowed Sir Mungo 5000. merks There was a second Gift taken in the name of Sir William Purves of the same Ward and Marriage Heugh Dollas pursuing Declarator of the double avail of the Marriage because there was a suitable Match offered and refused Compearance was made for Sir William Purves and the Lord Frazer his Assigney who declared that their Gift was to Streichans behove and alleadged that the first Gift could only be declared as to 5000. merks contained in the Earl of Crawfords Declaration because of Sir Mungoes Back-bond the time of passing of the Gift It was answered First That Sir Mungoes Back-bond and the Earl of Crawfords Declaration could not prejudge the Pursuer who was a singular Successor to Sir Mungo especially seing it is offered to be proven that the Gift was assigned and intimate before the Back-bond after which no Writ subscribed by the Cedent could prejudge the Assigney It was answered that the said Assignation being of the Gift when it was an incompleat Right and only a Mandat granted by the King could not prejudge the Back-bond granted at the time the Gift past the Exchequer and Seals for then only it became a compleat Right and notwithstanding of the Assignation behoved to pass in the Donatars Cedent his Name so that his Back-bond then granted and Registrat in Exchequer behoved to affect and restrict the Gift otherways all Back-bonds granted to the Thesaurer and Exchequer might be Evacuat by anterior Assignations It was answered that this Back-bond was granted to the Earl of Crawford then but a private Person and hath not the same effect aâ a Bond granted to the Thesaurer The Lords found this Back-bond granted at the passing of the Gift and Registrat in the Books of Exchequer to affect the said Gift and therefore restricted the Declarator thereto In this Process it was also alleadged that the first Gift was null bearing the Gift of the Ward and Marriage to be given upon the Minority of Streichen and the Decease of his Father and the second Gift buire to be upon the Minority of Streichen and the Decease of his Goodsire who dyed last Infeft his Father never being Infeft It was answered that the Designation was not to be respected seing the thing it self was constant and that the Fathers Decease albeit not Infeft was the immediate cause of the Vaccation seing the Oye could have no interest until the Father though not Infeft were dead The Lords forbore to decide in this seing both Parties agreed that the 5000. merks should be effectual so that it was needless to decide in this which if found Relevant would have taken away the first Gift wholly Colonel Cuninghamâ contra Lyll Feb. 1. 1666. IN a Competition between Colonel Cuninghame and Lyll both being Arresters and having obtained Decreets to make forthcoming in one day and Colonel Cuninghams Arrestment being a day prior he alleadged he ought to be preferred because his Diligence was anterior and his Decreet behoved to be drawn back to his Arrestment It was answered for Lyll that it was only the Decreet to make forthcoming that constitute the Right and the Arrestment was but a Judicial Prohibition hindering the Debitor to Dispone like an Inhibition or a Denunciation of Lands to be appryzed and that the last Denunciation and first Appryzing would be preferred So the Decreet to make forthcoming is the judicial Assignation of the Debt and both being in one day ought to come in together It was answered that in legal Diligences prior tempore est pâtior jure and the Decreet to make forthcoming is Declaratory finding the sum arrested to belong to the Arrester by vertue of the Arrestment and as for the Instance of Appryzings the first Denunciation can never be postponed unless the Diligence be defective for if the first Denuncer take as few days to the time of the Appryzing as the other he will still be preferred The Lords preferred the first Arrester being equal in Diligence with the second contra Mr. John and Henry Rollocks Eodem die IN an Exhibition of Writs it was alleadged that Mr. Iohn and Henry Rollocks being Advocat and Agent in the Cause was not oblieged to Depone in prejudice of their Clients or to reveal their secrets but they ought to pursue their Clients for a Servant Factor or Person intrusted with the custody of Writs ought not to be Examined in prejudice of their Constituent unless it were as a Witness It was answered that their Client was called In respect whereof the Lords ordained the Defenders to Depone concerning the having of the Writs Fodem die AN Executor Dative ad omissa mala appretiata pursuing the principal Executrix and referring the Goods omitted and Prices to her Oath She alleadged that she had already Deponed at the giving up of the Inventar and could not be oblieged to Depone again The Lords ordained her to Depone seing she might have intrometted after and more might have come to her knowledge of the worth of the Goods or a greater price gotten therefore Arch-bishop of Glasgow contra Mr. James Logan Eeb. 6. 1666. THe Arch-bishop of Glasgow pursues a Declarator against Mr. Iames Logan for declaring he had lost his place as Commissar Clerk of Drumfreis because he had deserted his place and gone out of the Countrey and because he was a Person insolvent and denunced Rebel and had lifted a considerable Sum for the Quots of Testaments which he had taken with him and not payed It was answered that the Defender had his Gift from the former Arch-bishop with a power of Deputation and that his place is and hath always been served by a Depute and therefore neither his absence nor his being Denunced for Debt can annul his Gift or hinder him to Serve by his Deput It was answered that the principal Clerk not having personam standi in judicio his Depute cannot sit for him who could not sit himself and that he being absent out of the Countrey for a considerable space must be esteemed to have Relinquished his Place The Lords found the Defense Relevant upon the pâwer of Deputation which they found not to be annulâeâ by his absence or denunciation sine crimine Livingstoun contra Begg Eodem die THomas Begg having
non habente potestatem obtained payment of a Terms Rent before the Decreet of Reduction Ianet pursues for that Term and alleadges that the Decreet of Reduction could not be effectual till it were pronunced albeit it bear her Right to be null ab initio yet that is but stylus curiae It was answered that the Tennent payed bona fide after Reduction obtained and intimat to him and that the Lords may ex arbitrio find the effect of the Reduction either to be asententia Litiscontestation or a Citation In this Reduction the Lords Assoilzied the Tennent for this Term though before Sentence Earl of Winton contra Countess of Winton Eodem die THe Earl of Winton pursues a Reduction of an agreement made by his Tutors and Curators with my Lady giving her a certain Duty for her Interest in his Coal as being minor and laesed in so far as by her Contract she had only Right to the fourth part of the Coal in his Property now his Coal for several years has been in his Feuars Lands by Reservation in their Rights And also craved the bygons It was answered that bona fide possessor facit fructus consumptos suos the Lady by the Agreement could not compt for the years Duty she had gotten It was answered that this holds not in the case of Minority and Laesion It was answered that albeit Minority Repones as to any principal Right yet not as to the Fruits and accrescences medio tempore The Lords Reduced but Assoilzied the Lady from Repetition Sharp of Houstoun contra Glen Eodem die GLen Pursues for Mails and Duties of some Lands Houstoun compears and alleadgesthat he has Right to these Lands by an Apprizing expired It was answered his apprizing was null because it proceeded on four Bonds the Term of payment of one whereof was not come the time of the Appryzing and so not being due the Apprizing was void quoad totum It was answered the sum was due albeit the day was not come and so being but plus petitum tempore he was willing to admit the apprizing to be longer time by the double redeemable after the legal were expired then all the time he apprized before the hand The Lords found the Appryzing void as to that sum Whereupon occurred to them to consider whether the appryzing should fall in totum or stand for the other 3 Bonds And if it stood for these whether a proportionable part of the Lands appryzed effirand to the Bond whereof the Term was not come should be found free or if the rest should affect the whole Lands as if for these only the appryzing had been led wherein the Lords were of different opinions and recommended to the Reporter to agree the Parties Lady Otter contra Laird of Otter Eodem die LAird of Otter having Infeft his Wife in Conjunct-fee or Liferent in certain Lands cum molendinis did thereafter build a Miln thereupon and the question arising betwixt the Liferenter and the Heir who should have Right to the Miln The Liferenter alleadged aedificium solo cedit The Heir alleadged that a Miln is distinctum tenementum that cannot pass without Infeftment aud the Clause in the tenendo cum molendinis is not sufficient not being in the Dispositive Clause nor any Miln built then and he offered to make up all the Liferenters damnage by Building on her Ground The Lords found that the benefit of the Miln belonged to the Liferenter as to the Multures of all that was ground without the Thirlage but found it not to extend to Lands of the Defuncts which he had Thirled to the Miln John Hay of Knokondie contra Litlejohn Eodem die JOHN Hay pursues Litlejohn for the damnage sustained by a House belonging to Litlejohn falling on the Pursuers House It was alleadged the Defender was only Apprizer of a Liferenters Right and this behoved to lye upon the Fiar who was oblieged to uphold the Liferenters House The Lords found the Defender lyable seing he possest as Apprizer sixteen years and also intrometters with the profits of the House are liable for the damnage sustained thereby seing both Fiar and Liferenter were oblieged to uphold it and are liable de damno Lord Salton contra Laird of Park and Rothemay Feb. 20. 1666. THe Lord Ochiltry having a Disposition of the Estate of Salton from the umquhil Lord Salton in anno 1612. Disponed the same to Park Gordon Rothemay and others This Lord Salton having granted a Bond to Sir Archibald Stewart of Blackhall he thereupon apprized all Right that could be competent to the Lord Salton of that Estate which Right being now retrocessed to the Lord Salton he pursues Reduction of the Lord Ochiltries Disposition and of all these Rights founded thereupon in consequence The reason of Reduction is founded upon an Interdiction against the Lord Salton Disponer before his Disposition and there having been a Process formerly depending at the instance of umquhil Sir Archibald Stewart and being Transferred after his Death the Lords allowed the Process to proceed upon the Minute of Transferrence without Extracting the Decreet of Transferrence which behoved to include the Process and hail minuts which could not be done for a long time whereupon the Lord Salton now insisting in the principal Cause It was alleadged first No Process till the Principal Cause were wakened For albeit the principal Cause be Transferred yet it is but instatu quo and therefore being sleeping there can be no Process till after the Transferrence there be a wakening The Lords Repelled this Alleadgence and found the Transferrence sufficient without any wakening It was further alleadged Absolvitor because the Pursuers Title being an Apprizing the Defender has an anterior Apprizing which does exclude the Pursuerâ ay and while it be Reduced or Redeemed It was answered that the ground of this Pursute being a Reduction upon Interdiction the Interdiction cannot be directly apprized but only the Lands belonging to the Person Interdicted being Apprized all Apprizers or other singular Successors coming in the place of the Heirs of the Person Interdicted may pursue on their Rights and thereupon Reduce voluntar Dispositions made contrair the Interdiction which Interdiction is not a Right it self but medium impedimentum exclusivè of another Right as an Inhibition and as a first Appryzer cannot hinder a second Appryzer to make use of his Right except in prejudice of the first Appryzer so he cannot hinder him to make use of the Interdiction to take away a voluntar Dispositionâ but prejudice of the first Appryzers appryzing as accords And in the same way a second Appryzer or any Creditor might pursue upon an Interdiction or Inhibition against a Creditor Which the Lords found Relevant and declared the Pursuer might Reduce this voluntar Disposition upon the Interdiction but prejudice of the Defenders appryzing contra Hugh Mcculloch Eodem die THe Laird of Balnigoun being arrested in Edinburgh for a Debt due to a Burges Heugh Mcculloch became Caution for him
old Act of Parliament Iames 2. bearing that whosoever should compone with a Thief for stollen Goods should be lyable in Theft-boot and punishable as the Thief or Robber He raises Advocation on this Reason that the Act was in desuetude and the matter was of great moment and intricacy what Deeds should be compted Theft-boot whereinto no inferiour Judge ought to decide because of the intricacy It was answered that the Lords were not Competent Judges in Crimes and therefore could not Advocat Criminal Causes from inferiour Courts and the Earl of Murray being Sheriff and having sufficient Deputs both should concur in the careful Decyding of the Cause It was answered that albeit the Lords did not Judge Crimes yet it was competent to them to Advocat Criminal Causes ad hunc effectum to remit them to other more competent unsuspect Judges The Lords Advocat the Cause from the Sheriff and Remitted the same to the Iusticeâ because of the antiquity of the Statute and intricacy of the Case Lockhart contra Lord Bargany Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick he appryzed but no Infeftment nor Charge followed Thereafter a Creditor of umquhil Sir William Dicks appryzes but before the appryzing Lockhart upon a Debt due by Sir William Dick arrests all sums in my Lord Bargany's hand and pursues to make forth-coming This Lord Bargany takes a Right from the appryzer for whom it was alleadged that he ought to be preferred to the Arrester because the arrestment was not habilis moduâ in so far as Sir William Dick having apprized for the sum in question the apprizing is a judicial Disposition in satisfaction of the sum and so it could not be arrested unless it had been moveable by a Requisition or Charge It was answered that the Act of Parliament Declaring Arrestment to be valid upon sums whereon Infeftment did not actually follow made the Arrestment habile and the Apprizing can be in no better case then an heretable Bond Disponing an annualrent It was answered that the Act of Parliament was only in the case of Bonds whereupon no Infeftment followed but cannot be extended beyond that case either to a Wodset granted for the sum where the Property is Disponed where no Infeftment had followed or to an Apprizing which is a judicial Wodset pignus pretorium It was answered that the Reason of the Law was alike in both cases to abbrige the Lieges unnecessar Expences by apprizing The Lords preferred the Apprizer Bishop of Glasgow contra Commissar of Glasgow Eodem die THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow and alleadged first that by injunctions related to in the Act of Restitution 1609. It was provided that all Commissars should Reside at the place where the Commissariot Sat and should not be absent but upon necessity and with leave of the Bishop under the pain of Deposition and that in case of the absence of the Commissar through sickness or other necessity or through being declined in these Causes the Bishop should name a Deput From whence it was alleadged first That the Commissar had already Transgressed the Injunctions and deserved Deposition for none Residence and for appointing Deputs himself not appointed by the Bishop yea for continuing to make use of these Deputs albeit the Bishop did intimat the Injunctions to him and did Judicially require the Deput not to sit and took Instruments thereupon 2ly That in time coming it ought to be Deâlared that the Commissar ought to Reside under the pain of Deprivation and to Act by no Deput but such as were authorized by the Bishop It was alleadged for the Defender Absolvitor from this Member of the Declarator because the Defender had his Office from the King and the late Bishop of Glasgow with power of Deputation And as to the Injunctions first They had no authority of Law for albeit the Act of Parliament 1609. related to Injunctions to be made yet it did not authorise any Persons to make the same nor is it constant that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly Albeit they had been then so made they are in deâuetude because ever since all Commissars have enjoyed their place with power of Deputation and exercised the same accordingly 3ly There is no Injunction against the Bishops giving power to the Commissars to Deput for albeit the Injunctions bear that in such cases he could not give Deputation and therefore the Commissar did not wrong to continue his Deput And it is most necssar that the Commissar should have a Power of Deputation or otherwise their Office is elusory seing the Bishop may be absent or refuse to Depute any Person in case of the Commissars necessary absence and so both delay Justice to the Leidges and Evacuat the Gift It was answered for the Pursuer that first the Injunctions were commonly received and known through all the Kingdom and are Registrat in the Commissars Books of Edinburgh being the Supream Commissariot and according thereto the Lords have decided in Advocations and Reductions and albeit they have not been observed seing there is no contrair Decision they cannot go in desuetude by meer none observance 2ly That the Injunctions do import that no Deputation can be granted by Commissars but only by the Bishops in casibus expressis It is clear from the foresaid two Injunctions for to what effect should the Commissars Residence be required if he might at his pleasure act by Deputs and why were these cases exprest if Deputation were competent in all Cases 3ly Albeit the power of Deputation granted by Bishop Fairfowl be sufficient during his life and seclude him from quarrelling the same personali objectione yet that Exception is not competent against this Arch-bishop 4ly The Injunctions being sent up to the King His Majesty has Signed and Approven the same which therefore Revived them and for the inconveniency upon the Bishops absence or refusal is not to be supposed but that the Bishops concerned in the Commissariots would provide remeid in such Cases The Defender answered that Acts of Parliament were not drawn ad pares casus consequentias much less their Injunctions and though they were now Revived yet that cannot be drawn back to the power of Deputation granted before Neither can this Bishop be in better condition then his Prececessor or quarrel his Predecessors Deed which he had power to do The Defender did also resume the Defense as to sufficiency and tryal that seing he had power of Deputation he was not lyable to Tryal nor to Reside if his Deput were sufficient The Lords found that albeit the power of Deputation should absolutely stand yet the principal Commissar behoved to be be sufficient and ordinarly Resident seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and
over-rule his Deputs for whom he was answerable and therefore was oblieged to Reside that albeit he did not constantly sit yet he might advise with his Deputs in important Cases and the Lieges might have access to him to complain in case of the Deputs Malversation and as to the power of Deputation it self and the Injunctions The Lords found that the Defender was in bona fide to enjoy these Priviledges till it was declared notwithstanding he was required to the contrair but as to the future they found that he ought to reside and make use of no Deputs without the consent of the Archbishop but whether that should be only pro re nata or by a warrand for such Persons not only upon necessar occasions mentioned in the injunctions but also in others that the Deputs might ordinarily sit and advise with the Commissars in Cases of importance The Lords were of different judgements and recommended to the Bishop in common to consider what was fit in that Case but declared only according to the Injunctions without interpretating how far the Deputation should reach Children of the Earl of Buchan contra Lady of Buchan February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment It was alleadged absolvitor because their was neither Law Statute nor Custome of this Kingdom oblidging a Mother to Aliment her Children 2ly Albeit there were she offers her to admit them in her Family and to entertain them according to her means but can never be oblidged to pay a modification in Money out of the Family for in all Cases of Aliment of Wives or Children against Parents the offer to accept and Aliment them in the Family according to the Parents Means doth alwayes exclude Modification as was lately found in the Case of Sir Andrew Dick and his Son It was answered that the Law of Nature is a part of the Law of this and all other Civil Kingdoms and according thereto the Lords do alwayes decide in Cases now occurring where there was neither Statute nor Custome and if Aliment be due the manner and measure is in arbitrio judicis who may justly ordain their Children to be bred from their Mothers seing she hath miscarried and Married a deposed Minister It was answered that the Law of Nature without our Custome is no sufficient Law to us and does not induce obligationem civilem but only pietatem affectum upon which ground it is that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters which insinuats that there was no such Law before and if the Law of Nature be the adequat Rule we are oblidged to entertain the Poor and all in distress and therefore they might pursue us thereupon 2dly There is no Reason to put it in arbitrio judicis whether a Child should be Educat with the Parent who must Aliment him even upon pretence of the Parents miscarriage for that being the indispensable Right of Parents to educat their Children as they see cause especially who demand Aliment of them it ought not to be in the arbitrament of any Judge unless it were a Parliament and this arbitriment would lay the Foundations to encourage Children to desert their Parents and to claime Aliment out of their Family and to pretend the Parents miscarriages as unfit Persons to be bred with and not breeding them in a fit way which accusations were prohibit by the Civil Law and never admitted by our Custome for albeit the Lords may appoint the way of Education of Pupils their Parents being dead yet Tutors have no such interest as Parents The Lords found the Mother oblidged to Aliment the Children jure naturae which was sufficient to infer this Civil Obligation and Action but found that the offer of Alimenting them in her Family was sufficient according to her means and they could demand no Aliment nor Modification extra familiam For they found that the Lords had thus sustained Aliment to Children against theîr Fathers not upon the Act of Parliament which is competent against all Liferenters and Donatars without consideration of their being Parents but super jure naturae which they found would not extend to the obligation of Charity and which had no definite rule but at the discretion of the giver and was not allowed as a civil obligation by any Nation Grant contra Grant February 24. 1666. GEorge Crant having Appryzed a Wodset Right from Grant of Mornithe and thereupon obtained a Decreet of Removing and Mails and Duties against Grant of Kirkdails Reduction was raised thereof and of the ground of the same viz of the Wodset Right on this Reason that the one half of the Sum was payed and the Wodset renunced pro tanto long before the Appryzing It was Replyed that there was an Inhibition for the Sum whereupon the Appryzing proceeded after which Inhibition if any payment was made or Renunciation granted the samine was reduceable ex capite Inhibitionis It was answered that all that the Inhibition and Reduction thereupon could work was in so far as might extend to the satisfaction of the Sum and now they were willing to satisfie the whole Sum cum omni causa It was answered that no satisfaction could now be accepted because Appryzing having followed upon the samine and being expired and no satisfaction being offered within the Legal or the time of the Reduction it cannot now be admitted It was answered that the Inhibition could not only work that nothing done after the same should be prejudicial to the Sum but altered not the Case as to the Appryzing led long thereafter unless the Inhibition had been raised upon the Appryzing The Lords found that Inhibition could not be taken away or satisfied by payment of the Sums after the expiring of the Apprizing wherein the President remembred of a former Case that even in the obtaining of the Reduction ex capite Inhibitionis the offer to satisfie the Sum whereon it proceeded was repelled In respect an Appryzing thereupon was expired Sir Robert Sinclar contra Laird of Waderburn Eodem die JOhn Stewart Son to the Earl of Bothwell being Abbot and Commendator of Coldinghame the Earl being Forefaulted in Parliament his Son was dishabilitat to brook any Lands or Goods in Scotland whereby Iohn fell from the Right of Provision of the Abbacie Thereafter the King annexed the Abbacie of Coldinghame which was excepted from the general Annexation 1587. to the Crown excepting the Teinds and gave Right of Reversion both of Lands and Teinds to the Earl of Hoom who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn Thereafter Iohn Stewart was by Act of Parliament restored and the former Act of Dishabilitation rescinded whereupon Iohn Stewart demitted his temporal Provision in the King's hands and got it Erected in an Heretable Right he thereupon Infeft Dowglas of Ivleck for relief of Sums Sir Robert Sinclars Lady as Heir to him
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit âuch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canânot be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
have been used at the Old Paroch Kirk and particularly by the Defender himself The Lords Repelled the Defense simply unless the Erection were alleadged as aforesaid and found in that Case the Reply Relevant to elide the same Earl of Argile contra George Campbel Ianu 25 1667 THE Earl of Argile insisting in the Removing against George Campbel It was alleadged no Removing because the VVarning was null not bearing to have been Read at the Kirk Door either at the time Divine Service uses to be or at least before Noon It was answered that the VVairning bore that the same was affixed on the Kirk Door and lawfully Intimat there which does import the lawful time of the Day 2ly The Pursuer offered to mend the Executions at the Bar and abide by it as so done It was answered that the Defender accepted the Executions as produced after which they could not be amended and that lawfully could not supply that Speciality otherwise if the VVarning had only born that the Officer had VVarned the Party lawfully it would have been enough The Lords admitted the Pursuer to amend the Execution he biding thereby and Ordained the Defender to see the same Hercules Scot contra Gibb Ianuary 29 1667. HErcules Scot having given his Horse to John Gib Stabler in Brunt-Island to be kept pursues Gibb for the price of his Horse The Defender alleadged Absolvitor because he having put out the Horse to the Grass it being in the Month of July the Horse fell over a Rock and brake his neck and the Defender is not lyable pro casu fortuito It was answered that the Accident was by the Defenders fault because he put the Horse to Grassing above the Craigs of Brunt-Island and caused ty his Head and Foot together 2ly It is offered to be proved by Witnesses that the Pursuer directed him to keep the Horse in the Stable at hard Meat and not to put him out to Grass The Defender answered that he was not in culpa because he had put out the Horse in a place where ordinarly other Horses were put out and had tyed him no other way then the rest of the Horses 2ly The Command to keep is only relevant to be proven scripto vel juâamento and the emission of words without any Fact is not otherwise probable The Lords found the Defense and Duply Relevant to elid the Summons but found the Reply and Triply Relevant to elide the same and found it Probable by Witnesses in respect it was a part of the Bargain betwixt the Pursuer and the Stabler Henderson contra Henderson Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson whereby he appoints the said Allan to be his Heir and Donatar to all his Lands and Estate and assigns him to the Rights and Evidences thereof with power to Enter by the Superiour But in the Narrative it bears the ordinar Narrative of a Testament and has a Clause subjoyned to all in case of his Return he may alter and annul the same there having nothing followed in his Life The said Allan pursues Henderson his appearand Heir to fullfil the former Writ and to Enter Heir and Resign in his favours conform to the meaning thereof The Defender alleadged Absolvitor First Because this Writ is no Disposition but a Testament or a Donation mortis causa in which no Disposition of Land can be valid 2ly Albeit this could be a Disposition yet it is not done habili modo there being no Disposition of the Right of the Land or any Obligement to Infeft neither can a Person be Constitute Heir but either by Law or Investiture or at least by an Obligement to grant Investiture 3ly This being donaâio mortis causa expresly Revocable by the Defunct at his return it is ambulatory and conditional Ita est he returned and granted Commissions and Factories whereby his mind appeared to be changed The Lords Repelled all these Alleadgances and sustained the Summons because though the Writ was unformal yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer to take effect after his death and albeit he returned seing he did no Deed to annul or recal this Writ this was effectual against his Heir to compleat the same Creditors of Sir James Murray contra Iames Murray Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber containing a Clause of Requisition and Reversion on payment at London the Lands being Appryzed by Sir Iame's Creditors they having the Right of Reversion did use an Order at Edinburgh against Iames Murray as now having a Right to the Wodset and pursue a Declarator The Defender alleadged Absolvitor because the Order is not conform to the Reversion which is strictissimi juris and behoved to be done at London It was answered the place being adjected in favour of Iames Livingstoun who resided at London The Pursuers have done more having consigned at the present Wodsetters Domicile London being only appointed as it was the former Wodsetters Domicile wherein he hath benefit and can have no detriment It was answered he was not obliged to Debate his detriment for if his Money were in London he would get six of the hundreth of Exchange to Scotland The Lords sustained the Order the Pursuers making up what should be modified by the Lords for the Interest of the Wodsetters Earl Tullibardine contra Murray of Ochtertyre Eodem die THe Earl of Tullibardine having Wodset the Lands of Logie-Almond to Murray of Ochtertyre he did thereafter Discharge the Reversion and at that same time got a Back-bond bearing That for payment of 56000. merks with all other sums that should happen to be due to him by Tullibardine and all Expenses that he should Dispone the Lands back to Tullibardine or the Heirs or Assigneys of his own Body but with this provision that if he were not payed before Martinmass 1662. the Bond should be null without Declartor Tullibardine premonishes and after Premonition Dispones the Lands to Sir Iohn Drummond and they both joyntly Consign and now pursue Declarator It was alleadged for the Defender Ochtertyre First No Declarator upon this Order because the Back-bond is Personal to my Lord and to the Heirs or Assigneys being of his Body so that Sir John Drummond nor no Stranger can have Right thereby to Redeem 2ly The Back-bond is extinct and null by committing of the Clause Irritant in so far as payment has not been made before 1662. The Purswer answered to the first that albeit the Reversion had been Personal to my Lord only excluding his Heirs and Assigneys yet my Lord in his own Lifetime might Redeem and being Redeemed the Right would belong to any to whom my Lord had or should Dispone 2ly This Clause Irritant is pactum legis commissoriae in pignoribus which by the Civil Law and our Custom is void at least may be still purged
before Declarator obtained as being rigorous and penal and so abiding the Lords Modification as well as Penalties in Bonds Modified of consent of Parties especially in this case where the performance is not of a single liquid sum but comprehends a general Clause of all Debts that were or should be after due The Defender answered that Clauses Irritant in Wodsets are not rejected by our Law but are valide only where Declarators are requisit The Lords may Reduce them to the just Interest of Parties before Declarator But here there needs no Declarator because the Defender is in Possession and may except upon the Clause Irritant committed and the Clause bears to be Effectual without Declarator and albeit this Clause could now be Reduced to the just Interest it is only this that seing Tullibardine hath sold the Land the Defender should give as great a price as it is sold for to Sir Iohn Drummond which the Defender is willing to do The Lords sustained the Order in so far as it is at the Instance of Tullibardine but not as to Sir John Drummond but prejudice to Sir John Drummonds Disposition They found also that this Clause Irritant might be purged now at the Bar or any time before Declarator which is always necessar though Renunced that medio tempore Parties may purge And the Lords inclined that Ochtertyre should have the Lands for the Price Sir John Drummond gave which is eighty eight thousand merks but upon Examining him and my Lord it appeared that my Lord had offered the Land to him re integra and that he had never been special as to so great a Price as this but only general that he would give as great a price as any other would give which they thought not sufficient seing any other thereby would be scarred from Bargaining Executors of Lady Pilton contra Hay of Balhousy Feb. 2. 1667. MR. Francis Hay granted a Bond to his Wifes Sister the Lady Piltoun bearing That for good Considerations he obliged him to pay her a 1000 merks yearly during her Life with this Provision that it should be Leisum to her to Employ the same for the Abuliaments and Ornaments of her Body or any other use she pleased and but any Right and Interest in her Husband thereto jure mariti her Executors do now pursue Balhousie as Heir for payment who alleadged-Absolvitor because he had payed to Piltoun her Husband and albeit it was provided that it might be leisum to his Wife to Dispose upon the sum yet she had not done it but the Husband had provided her with all Abuiliaments necessar It was answered that the Husbands jus mariti was excluded by Mr. Francis himself And whatever might be alleadged of what belongs to a Wife proprio jure that nothing more can remain with her but her necessary Aliment and all the rest being in the Person of the Wife doth return to the Husband jure mariti albeit the jus mariti were renunced in her favours yet the Right here is freely given by a third Party excluding the Husband which third Party might gift with what Provisions he pleas'd and his gift returns to himself unless these Provisions be observed and this must be thought to be a gift seing it bears no Cause onerous It was answered that it bears good Considerations and Expresses not to be a Gift or done for love and favour 2ly If the Gifter were opposing the Husband or his Creditors Right and making use of that Provision that his Gift might return seing the Provision was not keeped it might have weight but here the Donators Heir makes not use of the Provision but concurreth with the Husband and payeth him The Lords found the payment made by the Donator or his Heir to the Husband Relevant to exclude the Executors of the Wife Pourie contra Dykes Eodem die UMquhil Dykes having Subscrybed a Bond to Pourie of this Tenor That he acknowledged himself to be resting to Pourie 56 pounds yearly as the annualrent of a 1400 hundred merks which sum of 56 pounds he oblieged himself to pay yearly This was the Tenor of the Bond whereupon Pourie pursued Dykes his Successors not only for the payment of the annualrent but for payment of the principal sum of 1400 merks alleadging that she being but a simple Woman had entrusted Dykes with the drawing of the Bond and he had deceived her and not mentioned the payment of the principal but that the acknowledgement that the Annualrent was due as the Annualrent of 1400 merks behoved to infer that the 1400 merks was also due this Ticket being holograph without Witness there was no clearing of the meaning by the Witnesses insert Therefore the Lords allowed the Pursuer to adduce such adminicles and witnesses as she would use for clearing of the same She adduced an Instrument bearing Umquhil Dykes upon his Death-bed to have acknowledged that he thought the principal sum had been contained in the Obligatory Clause and that it was through his neglect or unskilfulness all the Witnesses in the Instrument being now dead the Nottar and he who is mentioned as Procurator to have taken Instruments in the Pursuers Name were Examined both acknowledged that Dykes had exprest his mind in the matter before them but they were contrary in the particular the Nottar Deponed conform to the Instrument but the Procurator Deponed contrary that the woman had quite the principal sum and had taken her to the Annualrent The Lords having considered the whole matter And first Whether the Ticket could import that the principal sum was due They found neither by the Ticket nor by the Instrument that that could be Instructed They considered next Whether the Annualrent was due during the womans Lifetime only or as a perpetual Annualrent to her her Heirs or Assigneys The difficulty was that the Obligement bore that Dykes should pay the Annualrent yearly but did not express neither to her her Heirs nor Assigneys but simply in these Terms To pay the 56 pounds yearly Which the Lords found to carry a perpetual Annualrent though Heirs and Assigneys were not exprest Lady Traquair contra Marion Houatson Feb. 5. 1667. THe Lady Traquair pursues Marion Houatson for the Mails and Duties of a part of the Liferent-Lands who alleadged Absolvitor because her umquhil Husband who was immediat Tennent to the umquhil Earl had bona fide made payment to him Likeas the Defender being only Sub-tennent to her Son had bona fide made payment to her Son of her Duty The Pursuer answered that neither of the Alleadgances were Relevant because any payment that was made by the Defender or her umquhil Husband was before the Term of payment and so could neither be said to be bona fide nam ex nimia diligentia suspecta est fides neither could it prejudge the Pursuer The Lords were all clear that the payment made by the principal Tacks-man before the Term was not Relevant but as to the payment made by the
certain-Lands upon the Renunciation of Barbara Nisbet insists upon that Member of the Summons against the Superiour Iohn Ker that he should receive and Infeft her who alleadged no Process unless the Pursuer show the Right of the former Vassal whose Heir had Renunced for the Pursuer can be in no better case then the appearand Heir who if she were craving to be Entred behoved to Instruct her Predecessors Right The Pursuer answered that her adjudication against the Defender as Superiour is in common form which hath been ever sustained upon good ground because a Creditor has no Interest to have his Debitors Rights when he is seeking adjudication which must be his Title to demand the Rights but the Superiour is obliged by Law to reserve the Adjudger without Instructing any Right further then the adjudication which hath been frequently so found in the case of Appryzers The Lords having considered the case and paralel with that of Appryzers found this difference that Superiours got a years Rent for receiving Appryzers but not of Adjudgers yet in respect of the common custom of these Summons they âepelled the defence and Decerned the Superiour to receive the Pursuer salvo jure âujuslibet suo Dam Geibs Moncreiff contra Tennents of Neutoun and William Yeoman Eodem die DAm Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tennents for a third part of the Duties who having Deponed that they payed so much for Stock and Teind joyntly for Yeards Parks and the whole Lands possest by them Compeared William Yeoman as now having Right to the Fee who alleadged no Terce of the Teinds because they fell not under Terce 2ly No Terce of the yeards because as the Mannor-place belonged to the Fiar without division so behoved the closs Gairdens Orchards yards c. The Lords found the Pursuer to have no Right to the Teind by her Terce unless there had been an Infeftment of the Teinds by Erection and therefore laid by the fourth part for the Teind and found that the years in question being possest by the Tennents and there being nothing alleadged nor instructed that there was a Tower Fortalice or Mannor-place having a Garden or Orchard for pleasure rather then profite they found no necessity to decide what Interest a Tercer would have in such but these being set by appearance as Grass Yeards they Repelled the alleadgeance Earl Tullibardine contra Murray of Ocâtertyre Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine against Murray of Ochtertyre Dispute the first of âebruary last It was now further alleadged for Ochertyre that Clauses Irritant in Wodsets not being illegal or null by our Law albeit the Lords do sometimes Restrict the Effect thereof ad bonum aequum to the just Interest of the Parties against whom the same is conceived they do never proceed any furâher But here Ochertyre is content to make up to the Earl his just Interest by paying a greater price for the Land then Sir Iohn Drummond and whereas it was alleadged that this was not receivable now after the Earl had made bargain with Sir Iohn Drummond Ochetyre now offered to prove that before any Bargain was agreed in Word or Writ he did make offer to the Earl of fourscore ten thousand merks which he offered to prove by Witnesses above all exception who communed betwixt them viz. the Lord âtormount and the Laird of Kylar It was answered that the Pursuers adhered to the Lords former Interlocutor whereby they have restored the Earl against the Clause irritant he satisfying Ochtertyre his whole Interest cum omni causae the same Point being then alleadged and Dispute aâd both Parties being judicially called and having declared their minds concerning any such offer whereby the Earl upon his hoâour declared that before the agreement with Sir Iohn Drummond Ochtertyre offered not so much by 4000 merks 2ly Any such alleadgence albeit it were competent it were only probable sâripto vel juramento the Earl now having Disponed to Sir Iohn Drummond so that the Effect would be to draw him into double Dispositions which is of great consequence both as to his Honour and Interest especially seing that Ochtertyre did not take an Instrument upon the Offer It was answered for Ochtertyre that the former Interlocutor cannot exclude him especially seing he did only then alleadge that he made a general offer of as much for the Land as Sir Iohn Drummond would give therefore but now he offers to prove that he offered 90000 merks which is 2000 merks more then Sir John's price The Lords found that they would only restrict the Clause irritant to the Effect that the granter of the Wodset might suffer no detriment which they found to be Effectual if the Wodsetter offered as great or a greater sum then the other buyer before any Bargain agreed between them either in Word or Writ âut found it not probable by Witnesses but by Writ or the Earls Oath and found that a general offer was not sufficient unless it had Exprest a particuâar sum Lord Iustice Clerk contra Rentoun of Lambertoun Feb. 13. 1667. THe Lord Rentoun Justice Clerk putsues Rentoun of Lambertoun as heir to his Father for Compt and Payment of his Rents Woods and Planting intrometted with by Lambertoun in the beginning of the troubles It was alleadged for the Defender absolvitor because by the Act of Indemnity the Leidges are secured as to all things done by any pretended Authority for the time Ita est The pursuer being sequestred the Defenders Father medled by Warrand from the Committee of Estates and made Compt to them as appears by his Compt producedâ which is ballanced by the Committee 2ly The said accompt bears That Lambertoun made Faith that it was a true accompt nothing omitted in prejudice of the publick after which he could not be questioned either for any thing in the accompt or for any thing omitted and not charged The Pursuer answered that the Act of Indemnity contains an express exception of all Persons that medled with any publick Moneys and had not made Compt therefore that they should yet be comptable 2ly The accompt produced contains two accompts one in anno 1641 another in anno 1643. The first is not approven by the Committee but adjusted by three persons who were no members of the Committee and whose Warrand is not Instructed and the second compt is only approven wherein the Charge is a Rest in the Tennents hands of the former accompt and the Oath is only adjected to the second accompt which cannot Import that Lambertoun ommitted nothing in the first accompt but only that he ommitted nothing in the second and his Oath is only to the best of his knowledge and can import no more than the Oath of an Executor upon the Inventar which excludes not the Probation of super Intromission It was answered for the Defender that the second accompt being the rest of the first accompt the
been declared at Buirran it does not infer that Lubeck being a free State at so far distance behoved to know the same much lesse that thereby there was a War betwixt the King and Denmark The Lords having considered the whole Debate were of different opinions whether the Victual could be called Counterband Goods simply or only when imported for relieving of Sieges or for the like War-like use and whetheâ Ships could be seised in their return not having actually Counterband Goods in but especially whether they could be seised without evidence at the time of the seisure at Sea that in that Voyage they had in Counterband Goods but they did only Determine the first Reason and found it relevant to infer that the Lubeckers was in bona fide to continue the Commerce having Loused within to few days of the Kings Manifesto and that no other Act of Hostility before were to be presumed to have come to the knowledge of Lubeck or that thereby they were obliged to know that there was an actual War unlesse these Strangers knowledge were instructed by their own Oaths or that it was the common Fame notour at Lubeck before they Loused that there was War betwixt the King and Denmark and the Defenders offering to prove the same The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception and in the mean time ordains the Strangers Ship and Goods to be Inventared and Estimate and delivered again to the Strangers upon Caution to make the same or price forthcoming in case the Defender prov'd and prevail'd and with the burden of the Strangers damnage and expences if they betook themselves to this manner of Probation and not to the Oaths of the Strangers who were present reserving to the Lords the remanent Points to be Decided if the Strangers knowledge of the War were known In this Processe the Lords found also that competent and emitted before the Admiral could not operat against thir Strangers qui utuntur communi jure gentium Sir Harie Hume contra Tenents of Kello and Sir Alexander Hume Iuly 23. 1667. SIr Harie Hume having Comprized the Lands of Kello compearance is made for some Annualrenters who craved preference because their Infeftments of Annualrent was before the Apprizing It was answered that the Infeftment of Annualrent was base never cled with Possession It was answered for the Annualrenter that he produced an Antaphocha bearing the Receipt of a Discharge granted by the Debtor of the Annualrent which did instruct the Annualrenter was in Possession before the Apprizing by uplifting the Annualrent from the Debtor It was answered that the Sum was of fourscore Merks which was far within an Terms Annualrent and that it related only to the personal Bond and not to the Infeftment and that there was more then this Sum due of Annualrent by the personal Bond before the Date of the Infeftment to which only it behoved to be imputed It was answered that the Receipt being general in part of payment of the Annualrent he that payed the Sum might impute it to what Term he pleased and so would impute it to a Term after his Infeftment It was answered that before that Discharge the Pursuers Apprizing was led though no Infeftment thereon after which so small a part of the Annualrent could not be impute to any but the first Annualrent due and could not validat the base Infeftment The Lords found it sufficient to validat the base Infeftment notwithstanding of what was alleadged on the contrair Sir George Mckenzie contra Iohn Fairholm Iuly 25. 1667. SIr George Mckenzie Advocat having formerly pursued Reduction of a Bond granted to Umquhil Iohn Fairholm wherein he was Cautioner for his Father and Pluscardy upon this Reason that he then being Minor intertained by his Father as in his Family his Father was his Administrator and in place of a Curator so that Deeds done without his Fathers authorizing as Curator was null neither could his Father authorize him to his Fathers own behove as Cautioner for his Father which the Lords found relevant to annul Sir George's Subscription and now Sir George desiring the Extract of the Interloquitor It was further alleadged that Sir George was not only Cautioner for his Father but also for Pluscardy and that his Father might authorize him to Subscrive Cautioner for Pluscardy and therefore the Bond behoved to stand against him as Cautioner for Pluscardy It was answered that albeit his Father might authorize him as Cautioner for Pluscardy in a Bond apart wherein his Father was not concerned yet if his being Cautioner to Pluscardy were to the behove of his Father he could not authorize him therein but this Bond is of that nature for Pluscardy and the pursuers Father being bound Conjunctly and Severally Caution adjected for any of the correi debendi could not but be to the behove of both because in so far the Obligation was strengthned and the payment made by the Cautioner would liberat both and if Sir George should be Decerned Cautioner for Pluscardy it would Liberat his Father and so is clearly to his behove In respect whereof the Lords repelled also this new Defense and adhered to their former Interlocutor and found Sir George's Subscription for his Father and for Pluscardy to be to his Fathers behove and that he could not authorize him therein neither did he at all directly authorize him but in so far as they both Subscrived as Principal and Cautioner in one Bond. Mr. Iohn Philip contra Mr. Iohn Cheap Iuly 26. 1667. MAster Iohn Philip pursues his Tenents upon a Disposition granted by Michael Philip Compearance is made for Mr. Iames Cheap who Apprized from Michael Philips Heir who alleadged that the Disposition is null neither being Subscribed by the Disponer nor by two Notars for him for albeit it mention the Subscription of three Notars yet two of them Subscribed not at the same time with the third and neither of these two bear that they did Subscribe at command but that they Subscribed only for Michael Philip because that he could not Subscribe himself and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars yet it is written with another Ink and does not appear to be Written at the time of the Subscriptions being the Hand-writ of him that Wrote the Body which mentions to be Written by him at Edinburgh and the Subscription is at Newburgh and because the Notars Subscription must give Faith to the Body of the Writ and not the Body to it It was answered that they offer to prove by the Witnesses insert that the Command was given It was answered that the Command being the most substantial point of the Subscription could not be proven or supplied by Witnesses for the Subscription of the Notar because the party could not Subscribe signifies nothing without the Command of the party for whom they subscribe and Warrand or Command in most ordinary Matters is not
sisti but also judicatum solvi that he may be ordained to do the same before the Lords Which the Lords refused but granted the Advocation in common form Sir Robert Montgomery contra Alexander Rankein November 23. 1667. SIr Robert Montgomery having obtained Decreet against Antonia Brown as representing Sir Iohn Brown her Father for two thousand Merks Arrests the price of a chain due to Antonia in the hands of the Lord Melvil and pursues to make forthcoming Compears Alexander Rankein and produces a Decreet obtained against Antonia and thereupon an Arrestment by the Sheriff of Fifes Precept and a Decreet of the Sheriff thereupon in July last the Arrestment being in the same Moneth and craves preference because he had the first compleat Diligence It was answered that Sir Robert having first Arrested in March last and first intented Processe thereupon before the Lords and having insisted therein the last Session was kept off by the compearance of the Lady Cullerny who also pretended Right to the Chain and has failed in no Diligence and therefore ought to be preferred to a posterior Arrestment albeit it have the first Decreet of an inferiour Court both Arrestment and Citation being after his for he having affected the Sum by an Arrestment the matter became litigious and no posterior Diligence nor Sentence of an inferiour Court could exclude him he using all Diligence before the Supream Court and not living within the Sheriffs Jurisdiction and the Sheriffs Decreet being only in absence otherwise no Process upon any Arrestment before the Lords can be secure but others may anticipat them by obtaining Decreets before inferiour Courts which are far sooner obtained It was answered that it was not the Arrestment but the Sentence to make forthcoming that transmitted the Right as being a Judicial Assignation and therefore the first Decreet is preferable for as Poinding might have been used upon the Sheriffs Precept notwithstanding of a prior Arrestment and Dependance before the Lords so must the Sheriffs Decreet which is equivalent have the same effect and Sir Robert ought to impute it to himself that took not the shortest way in pursuing before the Sheriff The Lords found the first Arrestment pursued before themselves sine mora and the first Citation preferable to a posterior Citation and Arrestment though obtaining the first Decreet and therefore preferred Sir Robert Montgomery and would not bring in the Parties pari passu the first Arrestment and Citation being several Moneths before the other Lord Iustice Clerk contra the Laird of Lambertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lambertoun for the Spoiling of his Woods and Planting in the beginning of the Troubles the Parties did agree that what Detriment of the Wood should be proven by Witnesses to be Adduced hinc inde the one half thereof should be payed by Lambertoun The Lords granted Commission to five of their Number who Examined Witnesses upon the place three of the Pursuers Witnesses proved the half of the Damnage to be eleven thousand Merks and gave clear Reasons of their knowledge two of them were used by the Defender also and two or three of the Defenders other Witnesses Deponed that the whole Damnage was about two thousand Merks and a third ex auditu agreed in some points At the Advising of the Cause the question arose whether the Lords might modifie betwixt the two Extreams or if they ought to Judge according to any two of the highest Testimonies or according to the most pregnant Testimonies giving the clearest ground of their Knowledge The Lords found the most pregnant Testimonies to be the Rule and Decerned according to the least that the Pursuers Witnesses did prove as being that wherein all did agree and not according to the most quantities that some proved Mr. Iohn Hay of Haystoun contra Mr. Iohn Drummond and Patrick Hepburn November 26. 1667. MAster Iohn Hay having pursued a Reduction of the Rights of some Lands against Mr. Iohn Drummond and called for the Rights made to him by Umquhil Patrick Hepburn Mr. Iohn Drummond got three Terms to produce reserving his Defenses and at the last Term alleadged no Certification against the Rights granted by Patrick Hepburn because none to Represent Patrick Hepburn were called a Diligence was granted Incidenter to the Pursuer to call the Representatives of Patrick Hepburn whereupon he Cited Patrick Hepburn his eldest Son and appearand Heir who having gotten one very short Term and that circumduced against him It was now alleadged that all the Terms ought to be granted to Patrick Hepburn seing he was a Party necessar to be called and his Rights were to be Reduced The Pursuer answered that this being a single Reduction de jure there was no more due but one Term. 2dly Albeit more were due yet Mr. Iohn Drummond having run three Terms already he can crave no more but one upon the account of Patrick Hepburn his Author The Lords in respect the Term Assigned to Patrick Hepburn was but on six dayes allowed him a second Term and ordained it to be Intimat by the Ordinar to the Advocats that in single Reductions of Rights of Lands they would grant two Terms for production and in Reductions and Improbations three only Captain Bood contra George Strachan November 28. 1667. CAptain Bood Captain of one of His Majesties Friggats pursues George Strachan who had Commanded that Friggat for a time and was sent a Voyage therewith from Brassie-found to London to restore a part of the Out-reick of the Ship which he had not Delivered but had excepted in his Discharge as being worn stollen or lost and now it was offered to be proven that he Sold and Disponed upon the same particulars he so reserved The Defender alleadged Absolvitor from such particulars as he condescended upon because he did waire out a considerable Sum of Money fot Repairing the Out-rige and necessars to the Ship during the Voyage for which in case of necessity he might have Sold a part of the Out-rige 2dly Albeit he might not have Sold the same yet he may retain or compence the price thereof with what he waired out necessarly and profitably for the Out-rige of the Ship 3dly He offered him to prove that such parts of the Out-rige in questionâ as he should condescend upon were worne and stollen which being his Defense he ought to be preferred in the Probation unto the Pursuer who ought to have no other Probation against him being a Person Intrusted but his own Oath much less a contrair probation by Witnesses that they were not Lost but Disposed upon by the Defender The Lords Repelled the first and second Defenses and found that albeit the Captain might have Hypothecat his Ship or Out-rige for the necessar Expences waired upon her yet that he could not Sell the same and that de facto he did not Sell the same because the Pursuer offered to prove he Sold them at Lieth after his Return and found the same probable by
he refused without an equal division and several of the Witnesses having Deponed that that difference was referred to the Owners without dissolving the consortship Mastertoun himself having also Deponed that in contemplation of the consortship Coningsbies Men waâ put Aboard of him and the Prize and the Witnesses having variously Deponed anent the distance when the first Prize streiked Sail and was taken The Lords found a consortship sufficiently proven and that there was a concourse as to the first Prize and therefore found Coningsby to have a Right to a share which they found to be the equal share seing Mastertoun was most instrumental and did actually seize upon both Prizes The Minister of Cockburns-path contra his Parochiners Eodem die THe Minister of Cockburns-path having obtained a Designation of a Horse and two Kines Grasse conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby It was alleadged Absolvitor because the Designation was null in respect it was by the Bishops Warrand direct to three Ministers Nominatim and it was performed only by two the third not having come and a Commission to the three must be understood joyntly and not to empower any two of them unlesse it had been exprest likeas the Act of Parliament anent the Grasse requires the Designation of three Ministers The Pursuer answered that by the Act of Parliament 1661. the Designation of Grasse is appointed to be according to the old standing Acts anent Manses and Gleibs which do not require three Ministers that number being only required by the Act of Parliament 1649. which is Rescinded and not revived as to that point and seing three Ministers are not necesâar but that two are sufficient the Designation done by two is sufficient The Lords Sustained the Designation unlesse the Defender shew weighty Reasons of prejudice upon the matter Sir John Weyms contra the Laird of Touchon February 8. 1668. SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance when he was General Commissar Charges the Laird of Touchon for his Lands who Suspended on this Reason that by that Act and Commission singular Successors are excepted The Pursuer answered that the Act excepteth singular Successors who Bought the Lands but the Suspender is appearand Heir and Bought in Appryzings for small Sums and as Wodsetters are not freed as singular Successors nor Appryzers within the legal so neither can the Suspender for albeit the legal as to the Appryzer be expired yet the Act of Parliament between Debtor and Creditor makes all Apprizings Bought in by appearand Heirs Redeemable from them on payment of the Sums they Bought them in for within ten years after they Bought them and therefore as to Touchon who is apperand Heir he is in the same case with an Appryzer within the legal Which the Lords found relevant and Decerned against Touchon Andrew Greirson contra Patrick Mcilroy Messenger February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger to use Inhibition and Arrestment against Sir Iames Mcdougal of Garthland and having failed to make use thereof in time before he Disponed did pursue him and Houstoun of Cutreoch his Cautioner before the Lord Lyon whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty and of the Damnage and Interest sustained by the Pursuer to the value of the Sums whereupon the Inhibition and Arrestment should have been used The Messenger and his Cautioner raises Suspension and Reduction and insists upon this Reason that the Decreet is null as a non suo judice because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office and upon default may Summond Messengers and their Cautioners and may Deprive the Messengers and Decern them and their Cautioners in the pains and penalty for which they became Cautioners yet the Lyon is not warranted thereby to Determine the Damnage of Parties through Default of Messengers which may be of the greatest Moment and Intricacy and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom The Charger answered that the Messenger was unquestionably lyable to the Lyons Juridiction and that both he and the Cautioner had made themselves lyable thereto by Enacting themselves in the Lyons Books ând granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty and have need of another Process for Damnage and Interest and that the Lyon has been accustomed to Decern Cautioners so before The Lords found the Reason of Reduction relevant and turned the Decreet into a Lybel but Sustained the Decreet as to the Penalty of 500. Merks in which the Messenger was Enacted but nât for the Damnage and Interest neââher against the Messenger nor Cautioner William Borthwick contra Lord Borthwick February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money he Suspends and alleadges that William is Debtor to him in an equivalent Sum for the price of the Lands of Halâeriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâsse the Suspender would extend and perfect the Minut which my Lord refuses especially and particularly to Subscribe a Disposition of the Lands with common Pasturage in Borthwick Moor. The Suspender answered that he was most willing to extend the Minut but would not insert that Clause because the Minut could not carry nor import the same bearing only a Disposition of the Lands with Parts Pendicles and Pertinents thereof which he was content should be insert in the extended Disposition and it was only proper after the Infeftment was perfected that the Charger should make use of it so far as it could reach which he was content should be reserved as accords 2dly If he were obliged to Dispute the effect of it it could not extend to Pasturage in the Moor of Borthwickâ first Because a special servitude of a Pasturage in such a Moor requires an express Infeftment and cannot be carried under the name of Pendicles Parts or Pertinents albeit the Moor were contiguous and the common Moor of a Barony but 2dly This Moor lyes discontiguous from the Lands of Halheriot and my Lords Lands lyes betwixt and does not belong to the whole Barony but to some of the Tennents of it only The Charger answered that this being a Minut behâved to be extended in ample form expressing all Rights particularly that the Right de jure could carry and there was no Reason to make him accept of Lands with a Plea and de jure Pendicles and Pertinents do well extend to common Pasturage when the said Pasturage is so Possessed and it cannot be contraverted but the Heretors and Possessors of Halheriot have been in undoubted Possession of common Pasturage in this Moor and that the Rent payable therefore is
extend to the Kings Sub-vassals because it bears only Free-holders and bears that the King shall accept of the Feu Duty during the Ward but the Ward of his Sub-vassals would never fall in the Kings hand and this meaning of the Act of Parliament is evident by the Act of Parliament 1606. bearing expresly that there was no warrand by the first Act for any Feues but such as were granted by the Kings immediat Vassals It was answered for the Defenders that they oppone the first Act of Parliament bearing expresly a general Reason of granting Feues for the policy of the Kingdom and that the King would give Example to the rest and that the Act no wayes restricteth to Free-holders of the King but others who hold of Subjects Ward are called Free-holders in opposition to Feues which is also cleared by the 91. Act Parliament 1503. The Title whereof bears a power to all persons Spiritual and Temporal to set their Ward Lands Feu which clears the meaning of the Parliament and the common custom till the year 1606. which is acknowledged in the Narrative of the Act 1606. which doth only annul Feues set to Sub-vassals in time thereafter and as to the Narrative thereof the Statutory part and not the Narratives of the Acts of Parliament which the Parliament doth not much notice are our Rules and this Narrative is contradicted by the Narrative of the Act of Parliament 1633. bearing that there is no reason why the Kings immediat Vassals should grant Feues more then Sub-vassals The Lords sustained the Feues being granted before the Act of Parliament 1606. Andrew Gray contra Howison and Gray Eodem die ANdrew Gray being Infeât as Heir to his Grandsire in certain Lands of the Barony of Foules holden blensh of the House of Gray pursues a Reduction of a late Infeftment in Anno 1655. granted to Walter Watson as long Posterior to his Right Compearance is made for William Gray of Haystoun as being Infeft by the Lord Gray and Sir George Kinnard who was Donator to the Recognition of the Estate of Gray by the alienation of this Lords Father which Recognition hath been declared by the Lords and alleadged that he hath the only Right because by the Recognition the old Rights of the House of Gray being void the Pursuers Subaltern Right fell in consequence therewith The Pursuer answered that before the Defenders Right he had obtained a Precept of clarè constat acknowledging his old Right whereupon he was Infeft It was answered that the Precept doth bear expreslly to be in obedience of Precepts out of the Chancellary upon the Pursuers Retour and so being a necessar Act and not voluntar it could be no acknowledgement or Ratification of the Pursuers Right The Lords having considered the Precept that albeit it mentioned the Retour in obedience to the Precept yet it bore also quoniam mihi clare constat c. in the common strain of a Precept of clarè constat acknowledging the Pursuers Predecessors Right and his Own They found that it did exclude the Donator and all having Right from him thereafter and after the Seasine past thereon George Heriot contra Town of Edinburgh Iune 25. 1668. GEorge Heriots Father being Infeft in an Annualrent out of certain Tenements in the Canongate obtained himself to be Served Heir in special therein before the Baillies of the Canongate and because the samine is within a Regality having a proper Chappel and was not to be Retoured to the Kings Chancellary So that Precepts were not to be had out of the Chancellary against the Town of Edinburgh Superiours to Charge them to Infeft him therefore George upon Supplication obtained Letters from the Lords to Charge them and they being now Charged he pursues a Poinding of the Ground It was alleadged for the Town no Process for poinding of the Ground till the Pursuer were Infeft in the Annualrent It was answered that he having done Diligence against the Town it was equivalent and did exclude them from proponing that alleadgance It was answered that no personal objection against the Town could be a sufficient Title against this Action without a real Right The Lords found no Process till Infeftment but declared that so soon as the Magistrates should be Denunced they would grant Warrand to the Director of the Chancellary to issue a Precept for Infefting the Pursuer for supplying the place of the Magistrates and their Contumacy Black contra Scot. Eodem die ALexander Black having obtained a Decreet before the Commissar of St. Andrews against Iames Scot for 126. pounds pursues a Transferrence thereof against the Representatives of Iames Scot who alleadged absolvitor because the Decreet is ipso jure null being given by a Commissar in a matter not Consistorial far above the quantity allowed by the Injunctions and there being nothing to instruct but the Defenders being holden as confest the Decreet at least must be turned to a Libel and yet proven 2. If the Defunct had been obliged to have compeared he would not only have denyed the Receipt of the Vinegar and Grapes Libelled but he would have offered to prove and the Defender offers yet to prove that they were refused and lay publickly upon the Shore where they were disloaded 3. It was offered to be proven the Defunct was lying on Death-bed the time he was Cited to Depone and was holden as confest The Pursuer answered that albeit these Reasons were relevant to Repone a Party holden as confest to their Oath yet were not sufficient to annual the Decreet seing the Pursuer lost his Probation the Receipt of the Goods having been two years agoe and albeit this sum exceeded the Commissars Injunctions yet the violation thereof does not annual his Sentence or take away his power unlesse the samine had been objected upon Compearance The Lords found not the Defenses Relevant to annul the Decreet or to hazard the loss of the Pursuers Probation but seing the Defender burdened himself with a contrair Probation The Lords inclined to admit the same if it were sufficiently pregnant and therefore ordained the Pursuer before answer to adduce Witnesses that the Goods were never taken off the Shore but Boated there Inglis contra Laird Balfour Eodem die THere being an Un-printed Act of Parliament for uplifting the Taxt and Loan of the Shire of Fife for Relief of some Noblemen ingaged for the Shire in Anno 1661. The Council did thereafter give Commission to certain persons in the Shire to conveen the persons resting and accordingly Cited the Laird of Balfour and he not compearing ordered quartering against him he Suspends on this Reason that this being a privat and particular Act of Parliament to which he was not called is salvo jure and could not burden his Lands of Creik because he is singular Successor therein to the Laird of Creik It was answered that there is no exception of singular Successors in the Act of Parliament so that this Act being a Reviving of the
wayes secure contra acquirenda unless the Assignation or Disposition had been equivalent to the Debt and satisfied it The Defender answered that that which was here Acquired was only a Fee for Service which is Alimentar and the Fee will not be due unless the Defender Serve in suitable condition effeirand to his place and therefore it cannot be made forth coming to any other use The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service could not be reached by his Creditors to whom he had made cessionem bonorum except as to the superplus more then what was necessar and they found no superplus in this case Captain Allan contra Parkman Eodem die CAptain Allan having taken Bartholomew Parkman and obtained him to be declared Prize Parkman raises Reduction and for fortification of the Admirals Decreet of Adjudication these Grounds were alleadged First That by the Testimonies of the Steirsman and Company it was proven that three of the Company were the Kings Enemies and so conform to the Kings Declaration of War Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies this Ship was Prize as was lately found in the case of the Ship called The Castle of Riga And albeit by a former Interloquitor the Lords had not found three men to be a number sufficient for Confiscation Yet it was not then considered that the whole Company consisted but of eight so that near the third of the Sailers were the Kings Enemies and one of them the Steirsman which is a considerable proportion 2dly This Ship though pretended to belong to the Swedes yet she had served the Kings Enemies the Danes and Hollanders two years and by the Swedish Treaty it is provided quod naves nullo modo accommodentur utriusque foederati inimicis 3dly It is also proven that this Ship carried Counterband-goods viz. Tar which was not the product of Sweden but carried from Denmark to Holland and that she was taken in her return having in a loadning of Salt from France so that albeit the Ship had been empty she might have been taken Prize in that same Voyage in which she did partake with the Kings Enemies or being taken in the same Voyage in which she had carried bona hostium And lastly it was also instructed that the Cargo with which she was taken was the product of the Counterband-goods and so in the same case as if the Counterband-goods had been actually in her the product being surrogatum quod sapit naturam surrogati It was answered for Parkman to the first Ground that he opponed the Lords Interlocutor finding three Sailers no sufficient number for Confiscation And in the case of The Castle of Riga the major part at least the half were the Kings Enemies To the second Ground it was answered that the Kings Allies making use of their Ships for Fraught was no way a lending of them to the Kings Enemies and as for the remnant Goods by the Kings Declaration of War there is only given Warrand to sease Ships having in them Counterband-goods or Enemies Goods and the Swedish ârety bears expresly si deprehenduntur so that this Ship having in her when she was taken no Counterband nor Enemies Goods is free It was answered that the Kings Declaration although it mention some cases of Seasure is not full or exclusive but the Law of Nations must take place or the Custom of Scotland in cases not exprest in the Kings Declaration And as for the Swedish Treaty it cannot be pleaded unless Parkman had a Pass from Sweden in all points conform to the Treaty but their Passes were in several things disconform as being granted when the Ship was in Holland and sent over Land And as for the Custom of Scotland to take Ships in the return of that Voyage in which they carried Counterband or prohibited Goods it appeareth by the Captains Commission and former Commissions in Anno 1628. and by a Decreet declaring a Prize wherein the same ground was Libelled that she was taken in the return of that same Voyage in which she had carried Counterband And the Lords having Written to my Lord Secretary his Letter in return bears That the Lords should decide according to the Law of Scotland It was answered for the Stranger that the particular Custom of Scotland can be no Rule for the Swedes but only the Law and Custom of Nations â and that England nor no other Nation hath that Custom to make Seasure but in delicto otherwise all Trade and Commerce would be destroyed unless Seasure were only upon what were visibly Aboard and not upon the pretence of what had been Aboard and albeit a Delinquence once committed by partaking with the Kings Enemies might endure for a longer time Yet the Custom of Nations for the utility of Trade hath Abridged it to actual Seasure in delicto and accordingly Judge Ienkins Judge of the Admirality in England hath Attested that during this War after search of the Records and Conference with other Judges he knows not of any Prize declared but when the Counterband goods or Enemies Goods were taken actually in them And for the Decreet alleadged on albeit that Ground be in the Libel yet other Grounds are also therein and there is no Debate as to that particular Point neither doth the Probation mentioned in the Decreet clear that that Point was proven And as to the Tenor of the Commissions albeit they might excuse the Captain from Fine or Damnages yet Strangers did not nor were not obliged to know the same but the Law and Custom of Nations and the Kings publick Declaration of the War and their Treaties The Lords having considered the Debate and that the several Points were of Importance and Preparatives they resolved to take the Grounds joyntly and so found the Ship Prize as having so considerable a proportion of her Company the Kings Enemies Some also were of the opinion that she having been taken in the return was sufficient especially not having a sufficient Swedish Passâ but the plurality waâed these Points whether the returns of Enemies Goods or Counterband or whether the Product or not Product thereof were sufficient Grounds of Seasure seing it did not so appear by the Custom of Nations or the Kings Declaration of War but by the former Debate it appeared that she had Aboard when taken a small parcel of Tar. Mr. David Falconer contra Sir Iames Keith Iuly 14. 1668. MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam that he being in the exercise of his Office informing the President to stop a Bill of Suspension given in by Sir Iames Keith Sir Iames did revile and threaten him calling him a Liar and a Knave and saying if he found him in another place he would make him repent what he said The Lords having received Witnesses in their own presence and finding it proven sent Sir James
found that the Cedents Oath could not be taken in prejudice of the Assigney to astruct the verity of the Subscription unless the Assignation had been gratuitous or the matter had been litigious before the same In which case they found that there was no place to Resile after the Subscription of the first Nottar the verity and warrand of the Subscription being proven by the said Margarets Oath The Suspender further alleadged that he could not Remove because the Liferenter being year and day at the Horn he had a Gift of her Liferent Escheat and thereby had right to possess her Liferent-Land The Charger answered non relevat because the Gift was not declared 2dly It could not be declared because it proceeded upon a Horning against a VVife cled with a Husband who being sub potestate viri cannot be Contumacious or Denunced Rebel thereupon The Suspender answered that he needed no Declarator himself being in possession of the only Right to which the Declarator could reach 3dly The Horning albeit against a VVife was valid unless it had been upon a Debt contracted during the Marriage but this Horning proceeding upon a Decreet against a VVife as Executrix and vitious Intromissatrix with her Husbands Goods a Horning upon her own Fact or Fault was alwayes effectual The Lords would not sustain the Gift without a Declarator and superceeded any Extract at the Chargers Instance till a day betwixt and which he might insist in his Declarator and superceeded till that time to give answer in relation to the Horning because the Kings Officers behoved to be called Mr. Alexander Seaton contra Menzies December 19. 1668. MR. Alexander Seaton as Executor to his Brother Pitmedden pursues Seaton of Menzies as Representing his Father who was one of the Pursuers Brothers Tutors for his Fathers Intromission with the Pupils Means who alleadged Absolvitor because the Pupil after his Pupillarity had granted a Discharge to one of the Co-tutors which did extinguish the whole Debt of that Co-tutor and consequently of all the rest they being all correi delendi âyable by one individual Obligation which cannot be Discharged as to one and stand as to all the rest for albeit pactum de non petendo may be granted to one and not be profitable to the rest a simple Discharge which dissolveth the Obligation of the Bond must be profitable to all The Lords Repelled this Defense unless the Discharge had born payment or satisfaction given and in tantum they found it would be Relevant but not a simple Discharge which could only be Relevant in so far as they by this Tutor would be excluded from the Co-tutors bearing a share with this Tutor in omissis male administratis there being nothing here but this Tutors own proper Intromission now insisted for The Lords Repelled the Defense simply Margaret Mckenzie contra Robertsons December 23. 1668. MArgaret Mckenzie pursues the Executors of her Husband to pay her share of the Moveables who alleaged Absolvitor because there was as much Debt as would exhaust the whole Moveables It was answered non relevat unless it were alleadged that the Executors had payed the Debt for the Debts being yet due it is jâs tertij for them to alleadge thereupon neither can this Pursuer propone alleadgances of payment Compensation or any other or the Defenders Reply upon the Debts belonging to third Parties unless they were pursuing themselves but the Pursuer is content to find Caution to repeat her share in case they were Distrest The Lords Repelled the Defense but prejudice to the Executor to Suspend upon double Poinding calling the Creditors It was further alleadged for the Defenders that they must have allowance of Sums bearing Annualrent since 1641. It was answered that no such Sums can burden the Relict her part because by the Act of Parliament the Relict has no share of such Sums if they were due to the Defunct and therefore a pari she cannot be burdened with such Sums being due by the Defunct The Defenders answered that the Act of Parliament excludes Relicts from such Sums as bear Annualrent being due to their Husbands but doth not bear that they shall be free of such Sums due by their Husbands and Statutes being stricti juris the Lords cannot extend them beyond their Sense to like cases The Pursuer answered that the Lords always did and might Explain and Extend Acts of Parliament to Cases implyed and consequent albeit not verbatim exprest and as to this Act of Parliament it bears expresly that all such Bonds shall remain in their condition as they were before the Act of Parliament 1641. quoad fiscum relictam before which the Bonds bearing Annualrent could not have burdened the Relict for the word such Bonds may not only be extended to Bonds due to Defuncts but to Bonds due by Defuncts The Lords Repelled also this Defense and found the Relicts part not to be burdened with any Bonds due by her Husband bearing Annualrent unless they had become Moveable by a Charge or that the Term of payment of the Annualrent was not come at the Defuncts death Smith contra Muire Eodem die JEan Smith having pursued Margaret Muire as vitious Intromissatrix with the Goods of George Smith her Husband to pay the sum of 110. pounds due by Bond by the said George to this Pursuer his Sister obtained Decreet thereupon and Appryzed the Liferent of the said Margaret Muire who Suspended and raised Reduction on this Ground that she could not be lyable as vitious Intromissatrix because she possest her Husbands Moveables by a Title in so far as by her Contract of Marriage she was provided to all the Goods and Gear acquired during the Marriage for her Liferent use and so she could only be lyable for making forthcoming the true value after her Death The Charger answered First That there could be no Liferent of Moveables quae usu consumuntur and all Liferents of usus fructus must be salvâ rei substantiâ 2dly Though a Liferent could consist in Moveables yet the meaning of such a Clause of all Moveables acquired during the Marriage must be understood the free Moveables deducing Moveable Debt and cannot be understood to exclude lawful Creditors The Lords found the Clause to be understood only of free Gear and not to exclude the Pursuers Debt but found it a sufficient ground to free the Suspender from vitious Intromission and to Retrench the Decreet to the true value Sir Iohn Weems contra Forbes of Tochân Ianuary 2. 1669. SIr Iohn Weems having Charged Tochon for Maintainance due in Anno 1648. or 1650. conform to Act of Parliament and Commission granted to him and Decreet of the Lords Tochon Suspends on this Reason that singular Successors are free by the Act and he is a singular Successor by Appryzing It was answered that the exception of the Act was only in favours of singular Successors who had bought the Lands which cannot be extended to Appryzers who oftimes have the
would still be Redeemable from his Assigney as well as from himself The Lords found that he was not Comptable for the whole value of the Lands Disponed but for what Sums he actually Received for the Lands Disponed to be proven scripto vel juramento The next point was as to the prices of the Victual whether the Feers or greatest prices were due The Lords allowed the Debitor to prove the greatest Prices and also to produce the Feers reserving to themselves the modification Next as to the Rental the Appryzer desired a joynt Probation especially it being in the Highlands where the Witnesses are suspect The Lords would not grant a joynt Probation but ordained the Probation to be by Witnesses above exception Hamiltoun contra Bain Ianuary 15. 1669. UMquhile Agnes Anderson having Disponed all her Goods and Moveables to Bains Bairns of the first Marriage and made Delivery thereof conform to an Instrument produced and having thereafter Married Iohn Hamiltoun he Ratified the former Deed done by his Wife in favours of her Bairns she being now Dead both Parties give in Supplications desiring Possession of these Goods Disponed to the Bairns they alleadged upon the Mothers Disposition Ratified by her second Husband And the Husband alleadging that it being but a fictitious Possession by an Instrument he as Husband being Dominus bonârum is in the natural Possession seing his Wifes Liferent use was reserved and cannot summarly be put therefrom hoc ordine upon a Supplication without Process 2dly If he were in a Process he would exclude the Bairns because the Disposition being made after his Contract of Marriage and Proclamation no Deed of his Wifes could then prejudge him and as for his Ratification he did it to satisfie his Wifes importunity but being granted to a Wife during the Marriage he may and does recal it It was answered that it was not a Donation to his Wife but to his Wifes Children which no Law makes Revockable Which the Lords Sustained and found the Husband could not recal his Ratification not being in Favours of his Wife but in Favours of her Children at her desire Earl of Athol contra Robertson of strowan Ianuary 19. 1669. MAster Walter Stuart as Parson of the Kirk of Blair in Atâol whereof Tillibairn was Patron gave a Tack to Tillibairn's Brother of the whole Teinds of the Paroch which Tack he within a few days Assigned to Tillibairn the Patron himself Tillibairn's Escheet and Liferent having fallen the Viscount of Stormont obtained the Gift thereof and as Donator Assigned the Right of this Tack to the Earl of Atâol who now pursues Robertson of Strowan for the Teinds of his Lands for many more nor 40. years from the Date of the Tack The Defender alleadged First that the Tack is null being Set for more nor three years without consent of the Patron contrair to the Act of Parliament 1594. The Pursuer answered that the alleadgeance was justertij to the Defender and was only competent to the Pursuer or some deriving Right from him for the Defender being lyable for his whole Teind had no Interest to quarrel the Pursuers Tack 2dly Albeit the consent of the Patron be necessar yet it is not necessar to be in the very Tack it self but a subsequent consent is sufficient and here the Patron has given a subsequent consent in so far as within a few dayes after the granting of the Tack he accepted an Assignation thereof himself and did obtain a Decreet of prorogation of the same The Defender answered that the Patrons consent being a solemnity requisit in Law behoved to be in the Tack it self and not being then adhibit the Tack of it self was null ab initiâ and a subsequent consent not by subscription but by acceptance or homologation was not sufficient and the Defender had good interest to propone the nullity not being founded super jure tertij but simply exclusive juris agentis as wanting the essential solemnities and also because the Defender has payed the Minister the accustomed Teind-duty for all years bygone and having his Discharge of the whole Teind-duty due by him eatenus he is in the Ministers place The Lords found the Defender to have sufficient interest to alleadge the nullity upon the Discharges but found the Patrons acceptance of a Right to the âack a sufficient consent to validat the same and that it required no consent expresly by subscription of the Tack The Defender further alleadged Absolvitor because this Tack never having attained Possession nor no action following thereupon for more then 40. years it is prescribed and void and so likewise is the Decreet of prorogation being more then 40. years since The Pursuer answered that the Defender having no Right to his Teinds had no interest to quarrel his Right 2dly That a Tack being but a Right to an annual Prestation it is all one as if a Right had been granted to every year a part in which case 39. years would be entire and the Pursuer insists for no further The Defender answered that prescription being a total extinction of the Right and not a transmission thereof by vertue of an other Right It is not jus tertij to the Defender to alleadge the same and to exclude any from troubling him upon a null and prescribed Right and he is lyable only to the Minister to whom he has made payment and obtained his Discharge for bygones and for time coming likeas it is better to be in the hand of an Ecclesiastical Person thân in the hand of a powerful secular Person To the second that there is not here granted distinct Tacks of several years but one individual Tack for many years all which years are expired but it subsists only by the prorogation and albeit it be true that if the Tack had been once cled with Possession and so become a real Right the Defender would only have been fred of the Duties before fourty years but the very Tack it self being never cled with Possession is singly expired and void The Lords found the Defense Relevant and competent to the Defender to Liberat him of all bygones payed to the Minister but not to exclude the Pursuer for time coming in respect that by the Decreet of Provision and prorogation of the Tack the benefice is no more a Parsonage but the Minister is a Stipendiary and is in Possession by vertue of a Modified Stipend the Right of the Teinds remaining by the Tack and prorogation forsaid in the Tacksman and in his Successors But because the Pursuer alleadged Minority and Lesion the Defender proponed a third Defense viz. That he had made payment bona fide to the Minister and had received a Discharge for his whole Teind duty and could be lyable for no further for bygones till his use of payment was interrupted by Citation or Inhibition The Pursuer answered that any payment the Defender made was but an inconsiderable Duty allocat out of his Teinds by vertue of the samine Decreet
of modification and locality and albeit the Minister had Discharged his whole Teind yet as to the superplus which is the Tacksmans part the Discharge was meerly gratuitous and was not upon payment made and the Pursuer was willing to allow what he truely payed the Defender answered that in all Benefices and Tacks use of payment importing a verbal Tack is sufficient per tacitam relocationem till it be interrupted so that if the Minister had granted a Tack in Writ but for one year and the Defender had continued in Possession per tacitam relocationem he was bona fide Possessor fâcit fructus consumptos suos even albeit the Minister had no Right so his use of payment for so long a time must work the same effect neither can it be made appear that the Defender or his Predecessors payed more then what they now pay The Lords Sustained the Defense and found the Defender only lyable for use of payment until Citation or Inhibition Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon Eodem die UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill his Son had a Son and four Daughters his Son being his appearand Heir and being Addebted a Sum to Mr. Iames Alexander he Charged him to enter Heir in special to Richard his Grand-father and Apprized the Lands from him whereunto Sir Charles Erskin has now Right the said Son being now Dead and never Infeft Mr. George Iohnstoun takes Right from the four Female Grand-children and Serves them Heirs to their Grand-father but before they were Infeft there was an Infeftment or Charge upon the Apprizing at the instance of Mr. Iames Alexander and in a former competition Sir Charles was preferred upon Mr. Iames Alexanders Right as denuding the Male Grand-child appearand Heir for the time in the same manner as if he had been Infeft now Mr. George Iohnstoun upon the Femals Right raises a Declarator to hear and see it found and declared that Mr. Iames Alexanders Apprizing was satisfied and extinct by Intromission before the legal was expired It was alleadged that the Pursuers as Heirs Served and entered to Richard their Grand-father had no interest to Redeem the Apprizing led against Robert their Brother unless they were also entered Heirs to their Brother which Robert if he were alive might Redeem the Apprizing against himself so that the legal Reversion being in his Person cannot belong to his Grand-fathers Heirs but to his own Heirs and as he or his Heirs could only Redeem so can they only declare the Apprizing to be satisfied by Intromission neither can the Reversion belong to two both to the Heirs of Robert who was Charged to enter Heir and to the Heirs of the Grand-father who Died last Infeft It was answered that Robert never having in his Person any real Right as never being Infeft albeit fictione juris the Act of Parliament gives the Creditors like Right upon his disobedience to enter being Charged as if he had entered yet that is a meer passive Title and could give no active Title to Robert or any representing him either to Redeem or to call the Apprizer to an accompt till they were entered Heirs to the person last Infeft for albeit the Creditor Apprizer has a real Right yet the disobedient appearand Heir has none and albeit the Lords might suffer the disobedient appearand Heir or his Heirs to Redeem the Apprizing because the Apprizer had no interest to oppose the same being satisfied much less can the Apprizer now oppose the Pursuers who being Infeft as Heirs to Richard have the real Right of Fee in their Person and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir which being a minor Right is implyed and included in the Property Which the Lords Sustained and found that the Heirs of the person last Infeft being Infeft might Redeem or declare against an Apprizer who Apprized from an appearand Heir lawfully Charged albeit they were not of that appearand Heir The Creditors of James Masson contra Lord Tarphichan Eodem die SEveral English-men Creditors to Iames Masson who lately broke being Infeft in several Annualrents out of Lands of his pursue Poinding of the Ground compearance is made for the Lord Tarphichan Superior and his Donator to the Liferent Escheet of James Masson who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent the Ground could not be Adjudged but the profits behoved to belong to the Superior and his Donator It was answered that the Superior or Donator had no Interest by the Rebellion of James Masson because before the Rebellion James Masson was Denuded in favours of his Son and he Received as Vassal so that the Vassal for the time not having fallen in Rebellion the Superior can have no Liferent Escheat The Superior answered that the Creditors of Masson having been once Vassal and as Vassal constituting their Annualrents they could not object upon the Right of his Son unless they had derived Right from his Son 2dly The Superior is also Creditor and hath Reduced the Sons Right as fraudulent in prejudice of him a lawful Creditor It was answered that the Superiors Right as a Creditor upon the Reduction doth not simply annul the Sons Fee neither doth it at all restore the Father again because it being but a Reduction to a special effect viz. that the Creditor may affect the Lands by Apprizing upon his Debt anterior to the Sons Infeftment notwithstanding of his Infeftment the Sons Fee stands but burdened with that Apprizing so that upon neither ground the Superior can have the Right of a Liferent Escheat of him who once was his Vassal but was Denuded before Rebellion and which is most competent to the Pursuers as well as if the Superior had been Denuded and another Superior Infeft if he or his Donator had been pursuing for a Liferent any person Infeft in the Land might well alleadge that he had no Interest as Superior being Denuded The Lords found that in neither case the Superior or Donator could have interest in the Liferent Escheat Mr. John Hay contra the Town of Peebles January 20. 1669. MAster John Hay the Clerk having pursued a Reduction and Improbation against the Town of Peebles of all Right of Ascheils belonging to him in Property containing also a Declarator of Property of the saids Lands of Ascheils and that certain Hills lying towards the Town-lands of Peebles are proper Part and Pertinent of Ascheils He insists in his Reduction and Improbation for Certification or at least that the Defenders would take Terms to produce The Defenders alleadged no Certification because they stand Infeft in these Hills in question per expressum and the Pursuer is not Infeft therein The Pursuer answered that he offered to prove that they were proper Part and Pertinent of the Lands of Ascheils whereof he produces his Infeftment The Defenders answered that till the samine were
the Disposition is void as being causa data causanon secuta 2dly Both the Disposition and Provision in the Contract that failing Heirs of the Marriage the 1000. pound should return to Iohn VVatson were obtained by Fraud and Circumvention being granted to a Curator ante reddiâas rationes by a Person who lately was his Minor and who was of a weak capacity Stupide and halfe Deaf and upon such unequal Terms her Means being worth 3000. pounds as appears by a Decreet obtained at her Instance and all she got being but 1000. pounds to return to Watson in case there were no Children and nothing secured on the Husbands part The Defender answered to the first that albeit the Disposition was of the same date with the Contract of Marriage it did not conclude that it was in Contemplation of the Marriage and might be and truly was an absolute Bargain As to the Reason of Circumvention it is not Relevant although the Terms had been as unequal as they are alleadged for the said Margaret Trench might freely Dispose of her own at her pleasure and leave it to Iohn VVatson who was her Mothers Brother if she had no Children especially seing David Trinch the nearest on the Fathers side is but her Goodsires Brothers Oy and never took notice of her whereas Iohn Watson Alimented her from her Infancy and obtained Decreets for her Means and never received a Groat thereof neither was there any inequality betwixt the 1000. pound and her means for which albeit there be a Decreet in absence of a greater sum yet there are unquestionable Defalcations which being Deduced with her Aliment there will not be 1000. pounds free The Lords conceiving the Matter to be very unwarrantable on the Curators part in taking this Disposition and Substitution before his Accompts with his Minor were given up did reduce both the Disposition and Substitution not only as done in Contemplation of Marriage but as being presumed fraudulent and unwarrantable Mr. Iohn Hay contra the Town of Peebles February 19. 1669. MR. Iohn Hay Insisting in his Declarator that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled wherein he stands Infeft in Property It was alleadged for the Town of Peebles that they do not acknowledge his Right of Property but they alleadge that they are Infeft by King Iames the second in their Burgage Lands with the Commonty of Priest-shiels and likewise by King Iames the fourth and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh he Perambulate their Commonty and hath set down Meithes and Marches thereof which are exprest in their Decreet of Perambulation within which their Meithes lie and that in Anno 1621. they have a Charter from King Iames the sixth of their Burgage and Commonty of Priest-shiels comprehending expresly thir Hills by vertue whereof they have been in peaceable Possession thereof as their proper Commonty by Pasturage Feuel Fail and Divot and by debarting all others therefrom The Pursuer answered that their Charters was but periculo petentis the King having formerly granted the Right of thir Lands to his Authors and the Decreet of Perambulation by the Sheriff of Edinburgh was a non suo judice the Lands not being within the Shire and for any Possession they had it was not constantly over all the year but only a while about Lambas of late and was still interrupted by him and his Authors and offered him to prove that they have been in immemorial Possession by Teiling Sowing and all other Deeds of Property and that thir Hills cannot be part of their Commonty there being other Heretors Lands interjected between the same and the Commonty of Priest-shiels so that the Pursuer ought to be preferred being in libello and far more Pregnant and specially alleadging Acts of Property by Tillage and the Defenders having Declarator depending of their Commonty and alleadged a Practique at the Instance of Sir George Kinnaird where he alleadging upon Property more pregnantly was preferred to an other in Probation alleadging Pasturage The Lords preferred neither Party to Probation but before answer Ordained a Perambulation to be and Witnesses adduced hinc inde anent the Situation of the Bounds and either Parties Possession and Interruption Lord Elphingstoun contra Lady Quarrel Eodem die THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun this Qâere came in from the Auditors how the small Articles of uncost should be proven It was alleadged for Quarrel that such Articles could be proven no other way but by his Oath seing it was impossible either to use Witnesses or for them to remember such small particulars occurring every day especially seing it was known to all Coal-masters that such particulars were ordinarly incident It was answered for the Lord Elphingstoun though these Particulars were small yet they amounted in whole to 2000. merks and that the Tutors ought to have keeped the Coal-Grieves weekly Books wherein every particular was set down dayly as they were expeded which if they were produced and both the Tutors and Coal-Grieves Oathes were taken thereupon that they were truly so payed as they were recently set down they might be allowed but no such Book being produced the Tutor could not give a Compt thereof at random nor could his Oath in Astruction thereof be received because it were impossible for him to remember these small particulars without the Books It was answered for the Tutor that during the Dependence of this Process the Books were lostâ which were made up by the Coal Grieves weekly but that he produced a Book made up of these Books and was willing to give his Oath that the first Books were lost and that thir Books albeit they be not direct Copies of the former Books yet that they were made up of the former and did agree in the matter with them and contained no more then they did The Lords refused to Sustain this manner of Probation but ordained Quarrel to condescend de casu ommissionis of the first Books and adduce such Proofs and Evidence thereof as he could and also to condescend who was the Writer of the latter Books that he might be Examined how he made up the one from of the other Kings Advocat contra Craw. Eodem die THe Kings Advocat pursues a Declarator of the Bastardy of one Craw. It was Alleadged for the Defenders that the Libel was not Relevant unless it had been condescended who was the Bastards Mother and offered to be proven that she was never married to his Father It was answered that not being married was a Negative and proved it self unless the Defenders condescended upon the Father and offered to prove married The Defender answered if that was Relevantâ the most of all Scotland might be declared Bastards it being impossible after a considerable time to instruct the Solemnizing of a Marriage but Law and Custom doth require that at least it must be
his own and was not in his Family and albeit he were not eager to put his Father out of Possession of his House and Lands yet his continuance of Possession is not Relevant unless it had been to his death or for a longer time but any delay that was is because it is but of late that the Doctor hath obtained special Declarator till which he was not in capacity to discontinue his Fathers Possession Neither can Members of Court be admitted to prove that the Father wared out the Expence and procured the Gift because the Doctor at the passing of the Gift gave a Back-bond that he being satisfied of the Debts due to him and the Expences thereof there should be place for the Rebels Creditors and did make Faith at the passing of the Gift that it was to his own behove after which no Winesses can be admitted against him nor any other presumptive Probation of the simulation of the Gift Which the Lords found Relevant and found also the Pursuers Reply upon the Back-bond alleadged granted by the Doctor to his Father Relevant to be proven by the Doctors Oath only Sir Iohn Vrquhart Supplicant December 7. 1669. SIr Iohn Vrquhart gave in a Supplication to the Lords bearing that he being Cited before the Council upon several alleadged Riots and fearing that he might be excluded from appearing in his own defense by hornings against him therefore desired that the Lords would grant Suspension of all Hornings against him ad hunc effectum only to give him personam standi in judicio but prejudice to the Creditors of all other execution Which desire the Lords granted as to all Hornings he should condescend upon Pittrichie contra Laird of Geight December 15. 1669. MAitland of Pittrichie having obtained the Gift of Recognition from the King of certain Waird-lands held by the Laird of Geight of His Majesty pursues Declarator of Recognition upon Geights Alienation of the Lands wherein compearance was made for the Purchasers thereof who alleadged Absolvitor because the time of their Alienation by the Law and custom in force for the time Such Alienations without consent of the Superiour were valide The Pursuer answered that any Law or Custom that then was is now Annulled and Rescinded as from the beginning The Defender answered that no Laws of whatsoever Tenor can be drawn back by invalidat Deeds done by the Law and Custom for the time especially as to Matters Penal such as Recognitions so that Parties having acted bona fide according to any thing they could know for a Rule cannot fall in the Penalty and certification of Recognition which imports a contempt of the Superiour and cannot be inferred by any Deed legal for the time The Pursuer answered that the contempt is the same when the Vassal alieâ natâ his Fee without the Superiours consent and when such Alienations being by Law become void and the Superiours Right of Recognition revived the Vassal did not after that time crave the Superiours Confirmation as Heir so he Laird of Geight having never sought Confirmation from the King since His Restauration it is no less contempt than if since the Kings Restauration he had Alienat especially seing the King refuses Confirmation to none who demand it It was answered for the Purchasers that the Vassal being Denuded in their favour according to the Law standing for the time his fault cannot lose their Right for though he should collude against them yet that ought not to prejudge them and there being no obliegment upon the Vassal to seek a Confirmation to the behove of the Purchasers they cannot be prejudged for not obtaining the same The Pursuer answered that the Purchasers might have craved the Kings Confirmation of their Right both for themselves and in name of Geight the immediat Vassal which Geight neither would nor could oppose The Lords Repelled the Defenses in respect of the Reply that no Confirmation was craved neither by the Vassal nor Purchasers his Sub-vassals which they might have done if they had pleased and therefore declared the Lands to be Recognosced Innes contra Innes Ianuary 5. 1670. Innes having granted an Assignation of an Heretable Bond of 6000. merks 4000. merks thereof to Robert Innes his eldest Son and 2000. merks thereof to William and Ianet Inness his younger Children and in case of Roberts Decease providing his part amongst the rest equally Ianes having died before Robert her Heirs and Roberts Heirs compet for the sum for Robert died without Children and William as Heir to Robert claimed the whole sum upon this Ground that Ianet being substitute by the Father to Robert without any mention of Ianets heirs Ianet having died before Robert she had never right and her Substitution became absolutely void and her Heirs not being exprest this Substitution cannot extend to them because though ordinarly Heirs are comprehended though not exprest qui acquirit sibi acquirit suis yet here is no Acquisition but a voluntary Substitution whereby it may be rationally conjectured the mind of the Defunct was that he would prefer Ianet to Roberts Heirs of line not being Heirs of his Body but not that he would prefer Ianets Heirs which were a degree further from his own other Bairns And the case of Substitutions in the Roman Law was urged that if the Substitute died before the Institute the Substitutes Heirs have never place It was answered that Institutions and Substitutions with us do far differ from the Roman Substitutions whereby if the Institute succeed the Substitute has never place as Heir to the Institute but the Institutes Heirs whatsomever which failing the Institute is there interpret so that if the Institute never be Heir then the Substitute has place as Heir of Tailzie and provision to the Substitute so that here Ianets Heirs are Heirs to Robert who had no Heirs of his Body and do exclude William his Brother and though Ianets Heirs be not mentioned yet they are understood and comprehended because in Tailzies and Provisions there uses never to be an Institution or Substitution of a single person without the Heirs of their Body And though there be some singular Cases in which Heirs not being exprest are not comprehended this is none of them It was further alleadged for William that William and Ianet being Substitute joyntly Ianet deceasing before Robert her share accresces to him jure accrescendi ex conjuncta substitutione It was answered that there is here only substitutio conjuncta verbis but disjuncta rebus for the sum is declared to belong to William and Ianet equally so that each of them has but Right to a half The Lords preferred the Heirs of Ianet and found that they had Right as Heirs of Provision to Robert and that they ought to be served to him and not to Ianet who had never Right her self having died before she was or could be Heir to Robert Elizabeth and Anna Boids contra Iames Boid of Temple Ianuary 6. 1670. JAmes Boid of Temple in his
Mails and Duties for the Cropt and year 1667. Achtertire insists for the Duties of the Cropt 1667. which are payable at Martimess 1667. The way of payment of the Rent of those Lands and many others being that the Tennent enters at Whitsunday and payes his Rent at Martimess thereafter for the whole year and if he remove at the next Whitsunday he payes no Rent at that Term but leaves his Corns Sowen by him upon the Ground which he Shears after his removal Whereupon it was alleadged by Sir Iohn Drummond that this way of payment being aforehand Duty whereby the Tennent payes at Martimess before he Sowes the Cropt for the Cropt of the year of God subsequent to the Martimess that therefore Sir Iohn entering at Whitsunday 1668. and having Right to the Duties due for the Cropt and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropt 1668. seing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment the whole Corns of the Cropt 1668. so that if Sir Iohn should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropt 1668. but only of the Cropt 1669. It was answered for Achtertire that he has the only Right to the Rent payable at Martimess 1667. and Sir Iohn can have no Right thereto because his entry being but at Whitsunday 1668. he can have no Interest in the Cropt then Sown and standing on the Ground unto which no Buyer did ever pretend but the Seller if he be in natural Possession takes always with him his own growing Cropt even after the Buyers enters into Possession and so do all outgoing Tennents and so did Achtertire at his entry which being at Whitsunday 1656. he lifted the Duties due at Martimess thereafter but lifted not the Martimess Duty of the Cropt 1655. payable before his Wodset and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent and if Sir Iohn Drummond should lift a years Rent due at Martimess 1667. and an other years Rent due at Martimess 1668. he should have two full years Rent of the Land within half a year of his entry which was at Whitsunday 1668. and which can never be understood except it had been clearly so expressed by the Parties neither is there here any further forehand Duty then what ordinarly Tennents paying Silver Rent and not Inlayed or Rentalled Victual entering at Whitsunday do for they pay the one half of there Rent at Martimess thereafter and the next half at the Whitsunday following that Martimess and for his years Rent they must have a years Cropt both of Grass and Corn and all the difference here is that the Rent due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year whereas if it had been according to the ordinar course of Silver Rent being payable half at Martimess 1667. and half at Whitsunday 1668. Sir Iohn Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it when it is payable jointly at Martimess 1667. The Lords found that Achtertire had Right to the Rent payable at Martimess 1667. and that Sir Iohn Drummond had Right to no part thereof Ierdan of Apilgirth contra Iohnstoun of Lockerby Feb. 24. 1670. APilgirth having Apprized Lockerbies Estate and pursuing on the Apprizing Lockerby alleadged that the Apprizing was satisfied at least he offered presently what was defective in this Accompt Lockerby alleadged upon a Wodset Right whereof an order was used whereupon the question arose and was reported by the Auditor whether after order used for Redemption of a proper Wodset the Sums Consigned being immediatly taken up by the Redeemer and the Wodsetter remaining four or five years in Possession thereafter and Declarator of Redemption being obtained upon production of the Sums consigned with the Annualrent from the Consignation whether the Wodsetter had Right to the Mails and Duties and might refuse his Annualrent or if he behoved to accept of his Annualrent and compt for the Mails and Duties It was alleadged for the Wodsetter that the Consignation was but simulat and the Money remained not in the Consignators hand so that he did justly retain the Possession and so was not comptable for the Duties The Lords found the Wodsetter comptable for the Duties seing he had no objection against the legality or verity of the order so that it was his fault that he keeped not the day of Consignation and Received his Money conform to the premonition and that the user of the order did no wrong to take up the Money out of the Consignators hand seing Consignations are upon peril of he Conâigner he making the same forthcoming at the time of Declarator with Annualrent since the Consignation George Graham contra The Laird of Stainbires Feb. 26 1670. GEorge Graham Merchant in Edinburgh Pursues the Laird of Stinbires for a Merchant Compt taken off partly by his Umquhile Father before his Decease and partly by his Factors and Servants thereafter It was alleadged as to the Defuncts Part of the Accompt the samine was not pursued within 3. years of the off-taking and therefore it is only probable by Writ or Oath of Party The Pursuer answered that he was ordinar Merchant to the Defunct for many years and that this was a current Accompt to the Defunct and his Heir the Defuncts Funerals having been taken off at his Death and the other subsequent Furniture to the Heir always since so that there is not three years betwixt that part of the Accompt that is for the Funerals and the last of the current Accompt given off to the Defunct and therefore it remains a current Accompt as to both 2dly There is not threeâ year betwixt that part of the Accompt furnished to the Defunct and the Summons raised against his Heir deducing the year and day in which the âeir could not be Pursued which is intra annum deliberandi The Defender answered that the currency of an Accompt was never extended to a Defunct and his Heir but only to one Person to exclude the prescription of probation by Witnesses neither in this short prescription is Minority or any other incapacity to be deduced and the Pursuer ought to have raised his Summonds intra annum deliberandi though he could not have obtained Decreet The Lords Sustained the Compt both against the Defunct and Heir as an current Accompt to be proven by Witnesses for the whole Doctor Hay contra Marjory Iameson Iune 8. 16670. DOctor Hay as Heir to his Father who was distressed as Cautioner for Con of Artrachy pursues a Reduction and Improbation of all Rights of the Lands of
of the Shire but at the Mercat Cross of the Regality in the English time when Regalities were supprest 2dly That the Appryzing was led at Glasgow and neither within the Shire of Air where the Lands ly nor by Dispensation at Edinburgh And albeit the Letters bear a Dispensation to Appryzâ at Glasgow and that the Denunciation was made accordingly for the Parties to appear at Glasgow yet there was neither Law nor Custom for such a Dispensation and Parties are not obliged to attend but at the head Burgh of the Shire or in communia patria at Edinburgh 3dly The Pursuer has also an Appryzing though posterior yet preferable because solemn and orderly according to the Custom then being It was answered that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities which were then supprest where they were used at the head Burgh of the Shire according to the Custom then and so validats such Appryzings yet this Defender having according to the standing Law of the Land Denunced at the head Burgh of the Regality the contrair unwarrantable Custom cannot annul his Appryzing proceeding according to Law And as to the Dispensation at Glasgow which was nearer the Lands then Edinburgh whatsoever might have been said to the inconveniency of granting such a Dispensation yet being granted it is valide and was then frequent to grant such Dispensations The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time at the head Burgh of the Shire upon Denunciation that it was more solemn and preferable as to the manner of Denunciation than that which was upon Denunciation at the head Burgh of the Regality at that time But the Lords did not determine whether such an Appryzing would have been valide if there had not been a more formall one Nor whether the Dispensation being granted at Glasgow was valide Margaret Scrimzeor contra Alexander Wedderburn of Kingennie Iuly 19. 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie and two others to be Tutors to his Daughter She now pursues a Tutor Accompt wherein this Question arose and was reported to the Lords by the Auditors viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished and became Insolvent and craved to be liberate thereof on that Ground in his Discharge It was alleadged for the Pupil that the Tutor must be lyable from the time that he knew that he was Nominat Tutor for albeit he might have abstained absolutely yet once accepting the Tutory by Nomination of a Testament wherein a Legacy was left to himself he must compt as if he had accepted it at the first for which there was adduced many Citations of Law It was answered for the Tutor that in the Roman Law Tutors were obliged to accept so soon as they knew their Nomination unless they could free themselves by the excuses allowed in that Law But with us it is absolutely free to accept or refuse without any excuse and it is only the acceptance that obliges and so can have no effect ad preterita as to that which perished before acceptance especially in this case the Defender being but one of three Tutors Nominate he ought to have had a time to endeavour with the rest to accept and his lying out was in such a time in which Judicatures did cease by War and Troubles the English after the Battel of Dumbar in September 1650. being possest of Edinburgh and the publick Records there was no Session keeped till the year 1652 or 1653. The Lords found the Tutor was not lyable for any thing that perished before his acceptance The Executors of Walter Hamiltoun contra The Executors of Andrew Reid Iuly 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid for payment of a Bond of 122. pounds Sterling and of a Bond of eighteen pounds Sterling due by the said umquhil Andrew Reid to the said umquhil Walter Hamiltoun The Defenders alleadged that they ought to have allowance of fifty pounds Sterling payed to Walter by Iohn Fleeming by Andrew Reids Order and of Sterling payed to Mckneich upon a Bill drawn by Walter Hamiltoun upon Andrew Reid to be payed to Mckneich and for proving thereof produced missive Letters Written by Walter Hamiltoun to Andrew Reid the one bearing that Fleeming had payed a part of the 50. pound and he doubted not but that he would pay the rest And the other bearing that Mckneich had got payment It was answered for the Pursuers that the Missive Letters could not instruct a Discharge or abate those clear Bonds because they did relate to Bills and Orders upon which payment was made and except those Bills and Orders can be produced the Letters relating thereto can have no effect for it must be presumed that the Bills and Orders have been retired by Walter Hamiltoun as having been allowed in other Bonds which then have been delivered by VValter to Andrew Reid it being the ordinar course amongst Merchants to interchange Bills and Bonds without any other Discharge neither do they take notice of their Missives relating to such Bills or Orders nor can it be supposed they can remember the same The Auditors in this Accompt having taken the opinion of several knowing Merchan's anent their Customs in this point they did all report in Writ and did all agree in this that missive Letters relating to Bills Orders or Discharges had no effect unless the Bills Orders or Discharges were produced and that Merchants neither did nor could have notice of such Missives to retire or interchange the same they did also visit Walter Hamiltouns Compt Book by which there appeared several other Bonds and Accompts betwixt the Parties beside these And in which also the sums contained in these Letters were set down as payment in part of the other Bonds and Compts whereby it appeared that the Bill and Order mentioned in the Letter were interchanged with the former Bonds The Lords found that the missive Letters relating to the Bill and Order had no Effect unless the Bill and Order were produced Hugh Moncrief of Tippermalloch contra Magistrates of Pearth Iuly 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth from whence he having escaped he pursues the Magistrates of Pearth for payment of the Debt who alleadged absolvitor First Because their Tolbooth was sufficient and the Rebel had escaped vi majori having broken the Stone in which the Bolt of the Tolbooth Door entered and forced the Lock in the time of Sermon and that immediately after the Rebel escaped out of the Town and was met with Friends that were trysted there at the time of his escape 2dly They had laid out all wayes thereafter to search for
whole production is specially insert It was answered that the Requisition was truly produced and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof It was answered that albeit in favorabilibus the Lords may supply Defects upon Production ex post facto yet in odiosis such as Clauses irritant of Reversions the Lords ought not to admit the same The Lords found the Decreet of Declarator null Sir David Dumbar of Baldoun contra David Dick and others February 22. 1671. BAldoun pursues âhe Tennents of Bombie for Mails and Duties Compearance is made for David Dick who produced an Apprizing of the saids Lands against the Lord Kirkcudbright within year and day of the Pursuers Appryzing and craves to come in pari passu with the Pursuer conform to the Act 1661. anent Creditor and Debitor It was answered that by the same Act it is provided that where Comprizings are acquired by the appearand Heir or to his behove that the same should be satisfiable for such Sums as the appearand Heir payed and offers to satisfie the same It was answered that albeit the Act doth so provide as to the Estate that might belong to the appearand Heir it can extend no further But this Appryzing is not only of the Estate of Orchartoun but of the Estate of Kirkcudbright wherein Sir Robert Maxwel appearand Heir of Orchartoun hath no interest the Appryzing must be valide as to that It was answered that Kirkcudbright was but Cautioner for Orchartoun and that the Act bears that such Appryzings shall be satisfied by what the appearand Heir payed and such Appryzings being satisfied it is simply extinct and can have no effect Which the Lords found Relevant and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother the Lords allowed Witnesses ex officio to be adduced for proving that it was for Sir Roberts behove William Gordoun contra Sir Alexander Mcculloch Eodem die WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns Who alleadged Absolvitor because the Defender having right by Appryzing to the Lands whereon the Corns grew did warn the Pursuer and obtained Decreet of Removing against him and thereupon dispossessed him and finding the Cropt upon the Ground he might lawfully intromet therewith nam sata cedunt solo especially where the Sower is in mala fide but here he was in Violence after a Warning and did continue to Sow after Decreet of Removing yea a part was Sown after he was Dispossessed by Letters of Ejection The Pursuer answered that by the Law and Custom of Scotland the Cropt of Corns or industrial Fruits are never accounted as pars soli or any accessory but are still moveable even when they are growing so that they belong not to the Heir but to the Executor and in case of a Disposition without mention of the Cropt albeit the Acquirer were Infeft after they were Sown and upon the Ground he would not have Right thereto neither doth mala fides or violent Possession alter the case for which the Law hath provided a special Remeid viz. the violent Profits but it can be no ground to meddle with the Parties Cropt brevi manu as accessory to the Ground for then the Parties should both lose the Cropt as pars soli and be lyable to the violent profits neither is there any Ground from the Warning nor yet from the Decreet of Removing which was Suspended before it attained full effect and the Defender continued in Possession of a House upon the Ground albeit he was put out of the principal House It was answered that the Decreet had attained full effect before the Suspension all the Pursuers Goods being off the Ground and he out of the Mansion-house wherein the Defender entered and brought all his Goods upon the Ground and though the Pursuers Mother being a valitudinary impotent Woman was suffered to remain in a Coat-house and the Pursuer with her upon that account that imports no continuance of Possession of the Land The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession reserving to him the violent Profits for that time But found the Defense Relevant as to what the Pursuer did after the Defenders Dispossession and found the Defender only lyable for the Expences of the Labouring and the Seed as being eatenus Locupletior factus Lord Iustice Clerk contra Mr. Iohn Fairholm February 23. 1671. THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks and having Infeft him in an Annualrent out of his Lands in security thereof Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent which was holden of the Earl of Levin himself who was Charged upon the Appryzing but unwarrantably to Infeft Fairholm in the Lands whereas the Annual rent only was Appryzed and the Charge should have been to Infeft Fairholm in the Annualrent thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands and after all did upon a Decreet against Lambertoun arrest the bygone Rents in Levins hand and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn the Justice Clerk as Donator to the Liferent and as Arrester competing with Fairholm did alleadge that Fairholms Appryzing being an incompleat Diligence and no Infeftment nor valide Charge thereon and having lyen over so many years the Arrester must be preferred for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown where it was so found and albeit Fairholm be the prior Arrester yet he hath done no Diligence upon his Arrestment whereas the Justice Clerk hath obtained Decreet and as Donator to the Liferent Escheat he is preferable for years after the Rebellion because the Liferent Escheat falling before any Infeftment or Charge on the Appryzing which was not used within year and day the Liferent excludes the Appryzer The Lords found the Appryzing preferable to the posterior Arrestment though no legal Diligence was done thereon for the space of nine years thereafter in respect the Appryzing being a Judicial Assignation required no Intimation and being prior it is preferable and they did not respect that single Practique the constant Custom since being contrary But found the Liferent Escheat preferable to the anterior Appryzing being without Infeftment or Charge as to the years after the Rebellion and preferred the Appryzer as to years preceeding Arnold of Barncaple contra Gordoun of Holm Eodem die THere being four Cautioners in a Bond and the principal Debitor having Suspended and found a Cautioner in the Suspension who having been Distressed and payed the Debt and having gotten Assignation from the Creditor Charges one of the Cautioners in the first Bond Gordoun of Holm who Suspends on this Reason that payment being made by the
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
of Selkirk â 15 Feb. 1668 Harlay con Hume 18 Iuly 1671 Harper con Hume 14 Ianuary 1662 Harper con Hamilton 29 Iuly 1662 Harper con Vassals 25 Iuly 1666 Harrowar con Haitly 13 Iune 1667 Hay con Hume 24 Iune 1662 Hay con Seaton 28 Iune 1662 Hay con Mârison 17 Feb. 1663 Hay con Corstorphin 19 Iune 1663 Hay con Nicolson 16 Iuly 1663 Hay con Collector of the vacand Stipends 17 Iune 1664 Hay con Magâstrats of Elgin 23 Novemb. 1664 Hay con Littleâ Iohn 16 Feb. 1666 Hay con Magâstrats of Elgin 12 Iune 1666 Hay con Magistrats of Elgin 5 Iuly 1666 Hay con Dowglas 10 Iuly 1666 Hay con Little-Iohn 14 Decemb. 1666 Hay of Strouie con Feâars 22 Iune 1667 Hay con Drummond and Hepburn 26 Novemb. 1667 Hay con Town of Peebles 20 Ianuary 1669 Hay con Town of Peebles 19 Feb. 1669 Doctor Hay con Iameson 8 Iune 1670 Hay con Magistrats of Elgin 18 Iune 1670 Henrison con L. Ludwharne 22 Decemb. 1666 Henryson con L. Ludwharne 4 Ianuary 1667 Henryson con Henryson 31 Ianuary 1667 Henryson con Henryson 14 Novemb. 1667 Henryson con Birnâe 27 Feb. 1663 Henryson con Anderson 18 Novemb. 1669 Hepburn con Hamiltoun 12 Decemb. 1661 Hepburn con Hepburn 22 Ianuary 1662 Hepburn con Hepburn 25 Feb. 1663 Hepburn con Nisoet 16 Feb. 1665 Heretors of Don con Town of Aberdeen 26 Ianuary 1665 Heretors of the Milne of Keithick con Fewars 29 June 1665 Heretors of Don con Town of Aberdeen 29 Iuly 1665 Heretors of Johns-milne con Fewars 9 Feb. 1666 Heriots con Fleming Messenger and his Cautioners 19 Ianuary 1666 Heriot con â Town of Edinburgh 25 June 1668 Hill con Maxwel 5 Feb. 1663 Hill con Maxwells 5 Decemb. 1665 Hogg con Hogg 2 Ianuary 1667 Hogg and others con Countess of Hume 3 July 1667 Hogg con Countess of Hume 10 Decemb. 1667 Hogg con Countess of Hume 10 Decemb. 1667 Humes con Bonnar 14 Decemb. 1661 Hume con Pringle 3 January 1662 Hume con 10 June 1665 Hume con the Tennents of Kello and Home 13 June 1666 1666 E. of Hume con Wodsetters 5 Iuly 1666 Dame Margaret Hume con Crawsoord of Kerse 10 July 1666 Hume con Creditors of Kâllo and Hume 12 Decemb. 1666 Hume con Tennents of Kello and Hume 24 Ianuary 1667 Countess of Hume con Tennents of Alcambus and Hogg 5 Feb. 1667 Hume con Creditors of Kello 28 Iune 1667 Hume and others con Hume 6 July 1667 Hume con Tennents of Kello 23 July 1667 Hume con Seaton of Meinzles 13 Ianuary 1669 Hume con E. Hume 14 Iuly 1670 Hume con Scoâ 7 Feb. 1671 Hume con Lo. Justâce Clerk 28 June 1671 Hume con Lo. Justice Clerk 4 July 1671 â Hume con L. Ryslaw 18 Iuly 1671 Hospital of Glasgow con Campbel 19 July 1664 Howison con Cockburn 17 Novemb. 166â Hânter con Wilsons 13 Decemb. 1667 Hânter con Creditors of Iohn Peter 11 June 1670 Marquess of Hunâly con Gordon of Lesmore 22 ãâã 1665 Hutcheson con E. Cassals 3 Decemb. 1664 Hutcheson con Dickson 6 Ianuary 1665 JAck con Fiddes 24 Iuly 1661 Iack con Pollock and Rutherfoord 23 Feb. 1665 Jack con Movat 13 Iune 1666 Iack con Iack 15 Iuly 1669 Jack con Borthwick 2 Feb. 1670 Jaffray con Iaffray 4 Decemb. 1669 Jameson con Mcclied 3 Decemb. 1661 Ierdin of Applegirth con Iohnstoun of Lokerbie 24 Feb. 1670 Inglis con Hogg 22 Decemb. 1664 Inglis con L. Balâour 25 Iune 1668 Innes con Wilson 4 July 1665 Innes con Innes 5 January 16â0 Johnstoun con Applegirth 7 Feb. 1662 Johnstoun of Sheenes con Broun 14 Iuly 1665 Iohnstoun con Mcgreegers 19 Iuly 1665 Iohnstoun con Tennents of Achincorse 22 Iuly 1665 Iohnstoun con Iohnstoun 21 Feb. 1667 Johnstoun con Cunningham 19 June 1667 Johnstoun con Sir Charles Erskine 6 Feb. 1668 Johnstoun con Paroâhioners of Hodonie 18 Iuly 1668 Iohnstoun of Sheenes con Arâold 22 Iuly 1668 Johnstoun con Sir Charles Erskine Lord Lyon 19 January 1669 Irwing con Mccartney 30 January 1662 Irwing con Strachan 24 Iune 1665 Iurgan con Capt. Logan 23 Iuly 1667 Iustice con Stirling 23 Ianuary 1668 Lo. Justice Clerk and Sir Alexander his Son con E. Hume 15 Iune 1670 Lo. Iustice Clerk con Fairholme 23 Feb. 1671 K Sir Iohn Kââth con Sir George Johnstoun 28 July 1671 Kello con Pâxtoun 3 July 1662 Kello con Pringle 31 January 1665 Kello con Kennier 5 January 1671 Kennedy con Hutcheson 8 July 1664 Kennedy con Weir 23 Feb. 166â Kennedy con Agnew of Lochnaw 27 Iuly 166â Kennedy and Muâe con Jaffray 24 June 1669 Kennedy con Kennedy of Cullen 8 Iuly 1670 Kennedy con Cunninghame and Wallace 12 July 1670 Ker con Parochâoners of Carriden 26 July 1661 Ker con Ker of Fairniâlie and others 9 July 1662 Ker con Hunter and Tennents of Cambo 8 Fâb 1666 Ker con Children of Wolmet 25 Feb. 1667 Ker con Ker 18 July 1667 Ker con Ker 5 Feb. 1668 Ker of Cavers and Scot of Golden-berrit Supplicants 6 January 1670 Ker con Downie 7 January 1670 Ker con Nicolson 28 January 1671 Kidd con Dickson 29 June 1666 L. Kilbirnie con Heiâs of Tailzle of Kilbirnie and Schaw of Greenock 20 January 1669 Lady Kilbocho con the L. of Kilbocho 20 Decemb. 166â Kilchattans Credâtors con Lady 16 January 1663 Kincaid con L. Fenzies 26 Feb. 1662 E. Kincairn con L Rossyth 24 Feb. 1669 E. Kincairn con L. Pittarâ 3 Feb. 1670 King's Advocat con E Mortoun 25 Feb. 1669 E. Kinghorn con L. Udney 3 Iuly 1666 E. Kinghorn con L. Udney 15 January 1668 Viscount of Kingstoun con Collonel Fullertoun 22 Feb. 166â Kinross con L. Hunthil 10 Decemb. 1661 Kinross con L. Hunthil 25 July 1662 Kintore con Boyd 27 Ianuary 1665 Kintore con the Heir of Logan of Coaâfield 9 July 1669 Kirkaldy con Balkanquell 9 July 1663 Kirktouns con L. Hunthill 12 Feb. 1662 Kirktouns con L. Hunthill 31 January 1665 L. Knaperin con Sir Robert Farquhar 9 Novemb. 1665 Kyle con Seaton 28 Iune 1665 L. Lambertoun con E. Levin 24 Iuly 1661 L. Lambertoun con E. Levin 3 and 11 dayes of Iuly 1662 L. Lambertoun con Hume of Kaimes 9 Iuly 1662 L. Lamingtoun con Chieâly 29 January 1662 Lânglands con Spence of Blair 17 Iune 1670 Langtoun con Scot 17 Decemb. 1670 E. Lauderdaâe con the Tennents of Swintoun 7 January 1662 E. Lauderdale con Wolmet 13 Iuly 1664 E. Lauderdale con the Viscount of Oxenfoord 11 Feb. 1665 E Lauderdale con Viscount of Oxenfoord last Feb. 1666 E. Lauderdale and Wachop con Major Biggar 7 Decemb. 1667 Laurie con Sir Iohn Drummond 18 Feb. 1670 Laurie con Gibson 4 Feb. 1671 Laurie con Sir Iohn Drummond 7 Feb 1671 Leckie con 20 Feb. 1663 Lâith con L. Lismore and others 14 Iuly 1666 Lennox of Woodâhead con Nairn 24 Iune 1662 Lennox con Linton 5 Feb. 1663 Lermont con Russel 9 Decemb. 1664 Lermont con E. of Lauderdale 12 Iuly 1671 Leslie con Gray 10 Ianuary 1665 Sir Iohn Leslie con Sinclar of Dun 22 Decemb. 1665 Leslie
Disponed these Lands to the Pursuer with her consent Subscribing the Disposition It was Duplyed The Defenders Subscription and Consent was Extorted metus causa whereupon she has Action of Reduction depending and holds the production satisfied with the Writs produced and repeates her Reason by way of Duply viz. if she was compelled by her Husband it was by just fear because she offered to prove by Witnesses that he threatned her to consent or else he should do her a mischief and that he was a fierce man and had many times beaten her and shut her out of Doors and offered to prove by the Nortar and Witnesses Insert that at the time of the Subscription she declared her unwillingness The Lords found the Defense and Duply Relevant David Wilkie contra Sir Andrew Ker. Eodem die DAvid Wilkie and others Tacks-men of the Castoms Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border Anno 1650. Set by them to him he Suspends and alleadges by the publick Calamity of the English Entry in Anno 1650. in Iuly Traffick was hindered and by the Kings Proclamation against Commerce with these The Charger answered it was a Casuallity ex natura rei and that they had payed without Defalcation and the Suspender had profit in former years The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years Adamsons contra Lord Balmerino Iune 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods now belonging to the Lord Balmerino for the whole Annualrent Balmerino Suspends on these Reasons First The Heretor against whom the Decreet of poinding was obtained and all the Tennents were Dead and therefore it can receive no summar Execution against the present Heretor and his Tennents but there must be a new Decreet against them Secondly Balmerino hath peaceably possessed this Tenement twenty or thirty years and thereby hath the Benefit of a possessory Judgement by which his Infeftment cannot be questioned without Reduction and Declarator Thirdly The Englishes possessed this Tenement several years by the publick Calamity of War and therefore there must be Deduction of these years Annualrents as is frequently done in Feu-duties Fourthly The two Tenements being now in the hands of different singular Successors Balmerino's Tenement can only be poinded for a part of the Annualrent The Pursuer answered that Poinding of the ground is actorialis chiefly against the Ground and therefore during the Obtainers Life it is valued not only against the ground while it belonged to these Heretors and Possessors but against the same in whosoever hands it be that the Moveable Goods therein or the Ground Right thereof may be Apprized To the second Annualrents are debita fundi and a Possessory Judgement takes neither place for them nor against them To the third though in some cases Feu-duties ceass by Devestation that was never extended to Annualrents due for the profit of a Stock of Money To the fourth the Annualrent being out of two Tenements promiscuously The Annualrenter may Distress any part for the whole in whosoever hands the Tenement may be The Lords Repelled all these Defenses but superceded Execution for one half of the Annualrent for a time and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion for his relief medio tempore Wilson contra Thomson Eodem die WIlson having obtained Decreet against Thomson for poinding of the Ground of a Tenement of Land Thomson Suspends on this Reason that the Chargers Infeftment is base and before it was cled with Possession the Suspender was publickly Infeft and thereby excludes the base Infeftment though prior The Charger answered that the Reason ought to be repelled because he had used Citation upon the base Infeftment before the publick Infeftment by which Citation res fuit letigiosa The Lords Repelled the Reason in respect of the Answer and found the base Infeftment validat by the Citation whereupon the Decreet followed Ruthven contra Laird of Gairn Iune 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate reserving his own Liferent after his Sons Death his Oye pursues him for an Aliment out of the Estate conform to the Act of Parliament appointing the Heir to be Entertained by the Donatars to the Ward Conjunct-feears or Liferenters thereof The Defender alleadged absolvitor because the Act of Parliament cannot be extended to his case who voluntarly Infeft his Son in his Estate with the burden of his Liferent Secondly If any Aliment were due the Mother who is Liferenter must bear her part Thirdly Aliment is only due where the Heir hath no other means But here the Heir hath a Stock of Money which though Liferented by his Mother yet he may Entertain himself out of the Stock The Pursuer answered First That the Act of Parliament anent Alimenting of Heirs is generally against Liferenters without exception Secondly The Disposition by the Defender to the Son was for a Tocher worth all the Estate he then had wherefore no part was Liferented by the Son or his Wife the Pursuers Mother but only a sum of Money which came by her self and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment the Defender having now succeeded to a plentiful Estate The Lords Repelled the Defense in respect of the Replyes Mr. David Watson contra Mr. Iames Ellies Eodem die MR. David Watson having acquired Right to the Superiority of Stenhouse milne pursues the Feuers for their Feu-duties who alleadge First no Process the Lands in Question being Kirk-lands Disponed to a Lord of Erection and it is declared that the Lords of Erection having only right to the Feu-duty till they be Redeemed by the KING at ten Years purchase by the Act of Parliament thereanent in Anno 1633. And thereby none have Right but such as subscribed the submission surrendring their Interest in the KING'S hands untill the Pursuer Instruct that his Author did subscribe the said submission he hath no Interest Secondly absolvitor from the Feu-duties 1650. and 1651. Because the Lands were wasted these Years by publik calamity of War Thirdly absolvitor from Harrage and Carrage because all Services are reserved to the KING by the said Act of Parliament The Lords assoilzied from Harrage and Carrage but differed for the Feu-duty being smal and found no necessity for the Pursuer to instruct that this Author did subscribe the Surrender after so long time but that the same was presumed for his so long bruiking the Fee Sir William Wilson contra Sir William Murray Eodem die WIlson having Apprysed Sir William Murrays Estate pursues him and his Tenents for Mails and Duties who alleadged that by the Act