loss by the event of that Process The Lords Found That the Executors having prosecuted a Process intented by the Defunct did their duty and officium should not be damnosum and therefore the Charges of that Process should not be upon their own accompt but should be defrayed out of the Executry but so that where Executors have no benefit by the Confirmation but are either simple Executors or universal Legators as to the superplus particular Legacies being payed if there be as much Executrie as will satisfie such Expences and the Legacies the Legacies ought to be payed intirely before the Executors have any benefit but if the Executrie will not amount to satisfy the Charges and particular Legacies the Charges are to be satisfyed and the Legacies to be abated proportionally and the Executor is to have no benefit but if he be a particular Legatar he is to be considered with the rest of the Legatars and to share with them proportionally Mr. Thomas Hay Clerk Concluded cause D. 182. Helen Mure contra John Law 6. June 1674. A Relict being pursued as Executor to her Husband for a Debt alledged she was only Executor Creditor for payment of 2400. merks provided to her by Contract of Marriage It was Answered That the Debt was satisfied at least compensed in sua far as she was obliged by the same Contract to give to the Defunct Goods and Gear to the value of 2400. merks which she declared she had in penny and penny worth and was worth the same which are the Words and obliged her self to put him in Possession thereof The Lords Found That the Husband having lived only 9. years after the Marriage because of the presumption that he had been silent all the time and had not craved nor declared the said Sum to be resting It was therefore to be thought that he had gotten the Goods and that the Obligement was satisfied and yet they thought that there being so much confidence betwixt Husband and Wife it were hard to put her to a full Probation They therefore Ordained her to give her Oath of Calumny that she had satisfyed the Obligement and to adduce some Probation and Adminicles to prove aliqualiter Mr. Thomas Hay Clerk Concluded Cause Mr. Rodger Hog alteri In the same cause it being further alledged that the Huband had payed for his Wife as much Debt as would exhaust that which she had brought with her and so that she had not payed it effectually The Lords Found That if she had put him in Possession of the Goods conform to the Obligement and that they were her own at least that she had a Right or coloured Title thereto that she was neither lyable to warrand either as to the eviction of the Goods or from any Debts seing the Husband taketh his hazard and in Law is lyable to the payment of the same Some of the Lords thought That albeit the Husband be lyable to the Creditors of the Wife whether she perform her part of the Contract of Marriage or not or whether he got any thing with her effectually or not yet it were very fit to consider the quality of the Debts of the Wife alledged payed by the Husband for if they were such as the Wife could not but know when she contracted Goods of the value foresaid and yet she did conceal them it were a Fraud and Cheat to oblige her self to be worth and give to her Husband Goods extending to 2400. merks when she knew she was not worth a Groat her Debts being so great as to evict the same They considered that in this case she did not dispone any Goods in particular but was obliged to a generalitie viz. That she was worth Goods of that value and she cannot be said to be worth in Goods the said Sum her Debt being equivalent Seing Bona are understood debitis deductis D. 183. Act of Sederunt eod die THE Lords thought fit to make an Act of Sedeâ—unt and to intimate it to the Advocats to the purpose following viz. That when an Alledgance is not admitted but a joint Probation is allowed before Answer if there be any other Alledgance found relevant and admitted to either Litiscontestation should be understood to be made as to that Alledgance 2. And likeways as to that effect that the Parties are concluded and cannot be heard thereafter to propone any other Alledgance 3. The Terms being run as to Alledgance not discust they are concluded as to the Probation of it as if the relevancy had been discust by a formal Act of Litiscontestation whereas it is remitted to be considered after Probation seing often ex facto oritur Jus and upon consideration of the circumstances after Probation the Lords have more clearness to determine Relevancy D. _____ 184. contra Hepburn 7. June 1674. THE Apothecary Patrick Hepburn his Son being pursued as Successor Titulo Lucrativo for a debt of his Fathers upon that Ground that tho the Right of Lands granted to him by his Father was before the Debt yet it was revocable and under Reversion to the Father upon a Rose noble when he contracted the Debt lybelled The Lords assoilÈied from the Passive Title foresaid but reserved Reduction It appears that the case was not without difficulty and that albeit future Creditors in some case may reduce Anterior Rights ex capite fraudis yet this is difficult and unusual and therefore it had been fitt to determine that Point viz. Whether an appearand Heir getting a Right revocable and of the nature foresaid should be lyable at the least in quantum seing if the Father had discharged the reversion he would have been Successor in respect of the Discharge after the Debt and the Son was a Child and the Father reserved and retained Possession and upon the Matter the Father 's not redeeming was a Discharge of the Reversion Actor _____ alteri Hog Concluded Cause D. 185. Cuningham contra Lees. 9. June 1674. THE Relict of James Deans alledging that her Husband had violently torn her Contract of Marriage pursued his Heir to hear and see the Tenor of it proven and offered to prove casum amissionis as said is The Lords albeit there was no Adminicle in write sustained the Summonds in respect there is a praesumptio Juris that there are Contracts of Marriage betwixt Persons of any consideration so that the Marriage was an Adminicle and the effect being meerly Civil and not Penal they had no respect to that Alledgance that the Process was after the Husbands decease and some 7 or 8 years after the deed D. 186. Paton contra Stirling eod die SIR Hary Stirling of Ardoch on Death-bed did by a Write acknowledge that the Right he had acquired from Doctor Paton of certain Lands was under Trust and for surety of Sums which he had payed for the Doctor whereupon Doctor Paton's Son intented a pursuit against Ardoch's Heir to declare the Trust and for Compt and Reckoning And before Answer The Lords having ordained Witnesses to
Sr. John Nisbet of Dirleton Lord Advocat One of the Senators of the Colledge of Iustice And one of his Maties most honble Privy Council etc. DISCâ—â—E IUSTITIAM D. Paton delin R. White sculp SOME Doubts Questions IN THE LAW Especially of SCOTLAND AS ALSO SOME DECISIONS OF THE LORDS OF COUNCIL and SESSION COLLECTED OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the Principal Matters in the said Decisions EDINBVRGH Printed by GEORGE MOSMAN and are to be sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII ADVERTISEMENT TO THE READER THE Deceast Sir JOHN NISBET of Dirleton His Abilities in the LAWS and generally in all Learning procured him the Employment of Kings Advocate And one of the Lords of Session and other Honourable Places deservedly conferred upon him in the time of His late Majesty King CHARLES the Second His long Practice and profound Knowledge in Our Laws gave the Rise to the following Doubts and Questions Which if he had Lived he would have Answered and Cleared as he has done many of them to the great satisfaction of our Ablest Lawyers and great improvement of our Law The Decisions are What his Leisure from publick Office could allow him to Observe and were ever thought so Succinct and Judicious that most Lawyers were at Pains to cause Copy them from the common Manuscripts though neither full nor Correct which now in the Printing is carefully helped At Edinburgh the fifteenth day of July 1697. Years THE Lords of His Majesties Privy Council Do hereby Grant to George Mosman Stationer Burges of Edinburgh his Heirs or Assigneys The sole Priviledge of Printing and Selling a Book Entituled Some Doubts and Questions of the Law Especially of Scotland As also The Decisions of the Lords of Session Observed by Sir John Nisbet of Dirleton Advocate to His Majesty King CHARLES the Second Together with An Index to the saids Decisions And discharges all other Persons whatsomever to Re-print Vend Sell or Import any of the saids Books for the space of nineteen Years after the day and date hereof under the Pain and Penalty of the Confiscation of the said Books to the said George Mosman for his own use and behoof and of the Sum of an hundred Pounds Scots to be payed by the Re-printers Sellers or Importers of the said Book to the said George Mosman Extracted by Me GILB ELIOT Cls. Sti. Cons LIST OF THE Several Heads of the following Doubts and Questions A. ADjudications page 1 Advocation by the Justices 2. Alimenta 3. Altarage Ib. Annexation to a Barony in another Shire Ib. Annualrent Ib. Annualrent for Damnage 4 Right of Annualrent Ib. Relicts Annuity 5. Annus Vtilis Ib. Appellatio Ib. Appellatio a Camera Imperiali Ib. De Appellatione a Praefecto Praetorio aliorum Judicum sententiis 6. Appellatio a Vicario Ib. Approbatio Ib. Arrestment 7. Arrestment of Conditional Debts 8. Arrestment Loused Ib. Per Aversionem Ib. B. Back-bonds to the Exchequer Ib. Bairns Part. 9. Bond Heritable Ib. Bond Moveable 10. Bonds of Provision to Children Ib. Bond of Relief Ib. Baron Courts 11. Bastard Ib. Bishops 12. Bishops Debts Ib. Bodomaria page Burghs Liferent Escheat Ib. C. Camera Imperialis Ib. Captions Ib. Casualities of Superiority 13. Causa cum qua Res transit Ib. Cautioner and Relief Ib. Chaplainrie Ib. Charge to enter Heir 14. Chattels Real Ib. Children and Creditors Ib. Childrens provisions Ib. Civitas Ib. Clauses in Contracts of Marriage 15. Coals 16. Collation Ib. Commission not to Expire morte Mandatoris 17. Commissioners to the Parliament Ib. Commontes Ib. Common Appendant 18. Communio Ib. Compensation Ib. Composition for Entry 19. Compriser Ib. Comprising Ib. Infeftments upon Comprysing 23. Conditio Ib. Confession by Criminals 24. Confirmation Ib. Confiscation 26. Confusione tollitur obligatio Ib. Conjunct-Fiar 27. Conquest 27. Consensus 28. Consensus Domini Ib. Consent Ib. Anent Consistories Whereby the Usefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are cleared 29. Consolidation 35. Decreets contra Consortes 36. Corporations 37. Creditors of the Defunct Ib. Persons convict of Capital Crimes Ib. Curator Ib. Curatores ad Lites Ib. D. Damnum cum quis utitur Jure suo 38. Death-Bed Ib. Debitor and Creditor 39. Nomina Debitorum Ib. Strangers Debts Ib. Debitum Annuum 40. Debitum in Diem Ib. Decimae Ib. Decreets of the Lords of Session Ib. Deeds both inter Vivos Mortis Causa Ib. Dependence 41. Destination of Succession Ib. Desuetudo Ib. Dies coeptus Ib. Dilapidation Ib. Dishablitation 42. Power to Dispone notwithstanding the giving away the Right of Fee Ib. Dispositio collata in arbitrium alterius Ib. Disposition 43. Actio ad Distractum 43. Division of the Duties of Lands betwixt Buyer and Seller Ib. Donatio inter Virum Vxorem Ib. Donatio mortis Causa 44. Donatio non acceptata Ib. Donators upon Recognition and Forefaulture 45. Duels and Hame-sucken Ib. E. Emancipatio Ib. Contractus Emptionis a Pretio incipiens aut Mensura Ib. What way the Buyer may be urged to Enter Ib. Entry of Assigneys upon Resignation 46. Entry upon Resignation by a singular successor Ib. Liferent Escheat Ib. Escheat single 48. Escheat without Backbond Ib. Delivered Evidents 49. Exception against the Cedent if always competent against the Assigney Ib. Executor Ib. Executor Creditor 52. Executor Nominate Ib. Executory Ib. Extent 54 Extinguishment of Rights Ib. F. Faculty to alter Ib. Faculty to Dispone Ib. Jus Facultatis Ib. Personal Faculty 55. Quae Facultatis sint Ib. Quomodo intelligendum Facultati non praescribi Ib. Faculty reserved to dispone Ib. Fee 56. De Feodo Pecuniae Nominum 57. Feus 67. F uda Nobilia Ib. Fiar Ib. Fiars of Bonds 68. Fiars in TailÈies 69. Fictio Juris 70. Fiscus Ib. Commissa Fisco Ib. Flumina Ib. Flumina Publica Ib. Forfaulture 71 Forisfamiliation 77 Funeral Charges Ib G. Gestio Haeredis 78. Gift Ib. Gift of Escheat with Backbond 79. Gifts of Forefaulture Ib. Gifts of Recognition Ib. Gift of Ward 80. If Gifts of Ward and Non-entry prejudge singular Successors Ib. Goods belonging to the Rebels at the Horn. Ib. Grana crescentia Ib. Great Seal 81. H. Heirs Ib. Behaving as Heirs 82. Heir of Conquest Ib. Discussion of Heirs 83. Heir and Executor Ib. Heirs Male 84. Obligements in Contracts in favours of the Heirs of the Marriage 85. Heirs Portioners 87. Heirs of Provision and substitute Ib. Heirs of TailÈie Ib. Quo casu Heirs of TailÈie may be considered as Creditors 88. Haereditas 89. Aditio haereditatis Ib. Haeres Contrahens Ib. Repudiatio Haereditatis Ib. Servus Haeres Ib. Vltimus Haeres Ib. Heirship Moveable 90. Money consigned for Redemption whether Heritable or Moveable Ib. Sums Heritable or Moveable Ib. Homologation Ib. Horning 91. How far a Husband is lyable for his Wifes Debt Ib. De Hypothecis Vulgo Wadsetts 92. Tacite Hypotheck 94. I.
Registrations within the time appointed should be Injustice because Testaments are not the Deeds of Parties concerned viz. Executors and Legators but the Wills of Defuncts which may be unknown to those who have most Interest and therefore the not Registration of them cannot be imputed to them as of Sasines and Hornings which are the Deeds of the Parties themselves and cannot be unknown to them 4. When Defuncts have not made Testaments it cannot be conceaved if there be not a Judicatory for Confirmation of Testaments how the nearest of Kin should be decerned and confirmed Executors Dative how Licences should be given quando dubia est haereditas and apparently damnosa and when haereditas est caduca and neither an Executor is nominate nor the nearest of Kin craveth to be confirmed how the Defuncts Goods should be preserved to Minors and Creditors if the Procurator-Fiscal be not decerned and either become comptable or a surrogation of Parties interessed And when Testaments have been already confirmed how shall Testaments ad omissa male appretiata non executa be expede How shall Executors Creditors be decerned How shall the intricate Questions be decerned and Disputs incident in the Confirmation of Testaments be decided anent the Nullity and Falshood of Testaments the competition of the nearest of Kin with the Executor Nominate of the Executor ad omissa with the Executor confirmed Of the Executor ad non executa with the Executor of the Defunct Executors anent the Praelation of Creditors and others of that nature The Confirmation of Testaments and the decision of Causes Matrimonial and Testamentary cannot be devolved upon the Lords of Session without great prejudice 1. Because the Lords are already overburdened with great Business and weighty Causes of Heretages and great Importance and therefore have been forced to discharge themselves of Actions possessory of Molestation Jam. 6. Parl. 11. Cap. 42. 1587. Ratifying a former Act of of the saids Lords whereby these Actions are remitted to other Judges because the multitude of Affairs before the Lords empeaches greatly the ordinary Course of Justice And it is not possible to the Lords to try the Verity so well which are the Words of the Act and Motive of making of it 2. The Lords have not time to hear Parties and urge earnestly calling and dispatch of the Businesses of greatest Consequence far less can they have time to urge Parties to confirm Testaments and to enquire and take course anent Defuncts Goods ne dissipentur to the prejudice of Creditors and Minors which should be done and is incumbent to the Commissaries ex officio albeit Parties urge not 3. The Lords Procedure by reason of multitude of Business before them is not peremptor and Parties after long and expensive attendance having prepared their Business for hearing cannot be assured to have them called and expede whereas Process before the Commissars are peremptor and Summons bear not continuations which is necessarly required in favourable Causes concerning Minors and poor People who cannot attend But especially in Edicts and Testaments which cannot bide delay least Minors Goods should perish And are so priviledged that in Vacant and feriat times they may be and are ordinarly expede without necessity of a licence All Questions and Causes and probation of Adultery on Impotency the Disputs whether frigiditas sit naturâ vel Arte utrum ante matrimonium aut superveniens Vtrum maleficium sit solubile an insolubile and others of that Nature cannot be agitate verecundé in so publick and eminent a Judicatory primâ instantiâ These Causes much less can be remitted to Sheriffs and other inferiour Judges 1. By reason of the Gravity and Intricacy of them (D.) Praetor etsi Patricius inter Maximos Magistratus Cognoscebat de Legatis peculiaris Praetor constitutus est qui de fideicommissis jus dicat hoc autem testamentariarum causarum membrum perexiguum est L. Si cui Legatum ff de condit demonst L. 2. ff de origine Juris § 32 ibi Cujac 2. The Sheriffs have either their Offices Heretable and Patrimonial or chosen yearly by his Majesty The first cannot have their Right of Jurisdictions enlarged to Causes of such gravity without a new Grant and Right from his Majesty and here how little favourable Heretable Offices are It is constant from Law and Reason by the Act 44. Ja. 2. Parl. 11. It is Ordained that no Office should be given in Fee and Heretage Skeen de verb. Sign in Verbo Sheriffs Because in Jurisdiction persona eligitur and both Heretable and other Sheriffs are known to be Gentlemen who understand not the Law nor the way of Process and are forced to delegate pedaneos Judices and to depute their Friends and Servants who have no knowledge of the Law and being changed yearly have no time to learn the least formality of Process (E) Sheriffs should answer for their Deputs Jam. 1. Parl. 1. C. 6. 1404. Ja. 3. Pa 5. C. 26. 1469. 3. Sheriffs who in Conscience and according to our Acts of Parliament are lyable to answer for their Deputs may think it hard that Causes of such weight and Difficulty which cannot be decided but by such as understand the Civil and Canon Law should be remitted upon their perrils to be Judged by Deputs 4. The Sheriffs Jurisdiction both Civil and Criminal is so large as is represented by the learned Skeen de Verb. Sign in Verbo Sheriffs that it cannot be extended without great Prejudices to Causes and Actions of a different nature Because Removings Molestations Ejections Services and other Actions competent to be judged by the Sheriffs are for the most part real and possessory and may be easily decided by the customary Law of the Country and Acts of Parliament Whereas Testamentary and other Consistorial Causes are in apicibus Juris and cannot be decided but by the Civil and Canon Law not authoritative but according to the equity of the said Law which must be known to those who are Judges in these Causes The prejudices and common Objections against Commissariots are these 1mo That they are Episcopal Courts 2do That Official Courts are supprest in England 3tio Exorbitancy of Quots and other abuses are great in these Courts That the first may be cleared It is to be considered that Jura Episcopalia are of two sorts 1mo Such as are usurped by Bishops as intrinsically inherent in the pretended Office of Bishops 2do Such as extrinsically belong to them by the Grant of Princes or otherways These of the former sort as their usurped Jurisdiction over their Bretheren are extinct with the Office The last sort is not to be supprest if they be useful and necessary Thus the temporal Jurisdiction of Bishops was Reserved to Baillies of Regalities conform to the Infeftment to be holden of His Majesty Thus Episcopal Patronages are not extinct but are to be disposed upon as the Estates shall think expedient sic de caeteris That
of a Subject A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and thereafter deceasing Quaeritur the Lands holding Ward whether the Marriage of the appearand Heir will belong to the King or to the Superior Ratio Dubitandi That the Superior not having owned the defunct to be his vassal he cannot claim the Marriage of his Heir and on the other Part The King is not Superior and grants only Infeftment in Subsidium and doth what the Superior without reason refused to do and there is a great difference betwixt the case foresaid and that when the Superior not being Infeft himself is therefore charged to Enter with certification to Lose the Superiority during his Life Because in the first case there is no contempt of the Superior but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal and in the other case there is both a wrong to his own vassal and a contempt of his own Superior that he is in non-entry and the more aggravated that being charged to enter he continues in non-entry and the act of Parliament therefore provides that he should Lose the Superiority It is informed by Iames Hay That the Lords have lately found That when Lands are holden some simple-Ward and some taxt both the single and taxt Marriage will be due The President being of another opinion If a Superior Infeft his Vassal being Minor before the Marriage fall by his attaining to the age of fourteen years may he claim the Marriage after it falleth If he Infeft him after the Marriage has fallen whether doth he pass from the Marriage Marriage Clandestine BY the act of Parliament anent unlawful Ordinations these who are so Married amitting jus mariti relictae Quaeritur If the Husband Loseth his Curiality or the woman her Terce Or only Jus mariti as to the Communion of moveables Acts Specially penal being stricti juris and there being beside other pains If Clandestinae Nuptiae without consent of Parents though they bind the parties so that they cannot Marry with any other yet will be null as to Parents and friends that the Children cannot succeed to them against their will Materna Maternis IF in no case that Maxime Materna Maternis has place with us And in special in that viz. if a Person succeed to his Mother and decease without Heirs upon the Fathers side will the Fisk exclude the Mothers friends the Estate being profectitious and descended from her In Allodialibus there is no succession of the Mother or her friends active but in feudis foemineis if a Son should succeed to his Mother and should thereafter Die Quaeritur whether his Heirs upon the Fathers side would succeed to such Lands or his Mothers Heirs Ratio Dubitandi That the said Lands are given ab initio primo investito and his Heirs which must be understood haeredes Sanguinis and the son having succeeded to his Mother his Heirs upon the Fathers side cannot be thought to be Heirs either to her or her predecessors and therefore in that case it is to be thought that the Rule should have place Materna maternis and there is the like reason in Patents of Honour being quasi feuda and being granted by the King to the receiver of the Patent and his Heirs A Person as said is being infeft in Lands as Heir to his Mother and dieing without issue whether will his nearest Kinsman upon the Fathers side or Mothers side succeed to him in the said Lands Ratio Dubitandi That by our custom the Fathers friends are alwayes preferable and that Rule Paterna Paternis Materna Maternis has no place and yet it is thought that in mobilibus when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Fathers side Because there is no affectio as to mobilia and there is no Limitation or Destination of Heirs as to these But as to Lands when the Right is taken to a man and his Heirs and a woman succeeds to the said Lands and thereafter her son as Heir to her if the son die without issue his Mothers Heirs ought to succeed Seing by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft either immediately or mediately Quid Juris as to Bands for Sums of money Answer It appears that there is eadem Ratio Seing there is in bands Limitatio haeredum Matrimonium SOla nuptialis benedictio solennis publicus in Ecclesia benedicendi ritus vera est Matrimonii apud Christianos executio ex quo tempore jura Matrimonii vigorem suum obtinent Licet concubitus non fuerit secutus Christenius de jure Matrimon Disser 1. quaest 1. Si post sponsalia pura concubitus accesserit sponsa conceperit sponsus vero ante confirmationem diem obierit de jure partus non est Legitimus quia non est ex justis nuptiis Idem-eadem disser Quaest 2. Isto casu licet interdum Sponsalia habeantur pro Matrimonio illud locum habet solummodo quoad vinculum mutuae promissionis ne illud temere solvatur non quoad reliquos Matrimonii effectus Idem eadem diss Jure Civili Divino Canonico non aliter Legitimum est Matrimonium quam si Parentes consentiant nec minus Matris quam Patris consensus requiritur praesertim mortuo Patre Non interest utrum consensus sit expressus an tacitus paria enim sunt consentire non contradicere Idem de sponsalibus Diss 1. quaest 3. p. 17. 18. Parentibus non permittitur Matrimonium impedire si id fiat injuria cum causa sit cognoscenda Statutis quarundam Civitatum cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos si Liberi sint minores viginti quinque annis non tenentur parentes rationes sui Dissensus proferre sin Liberi annum vigesimum quintum expleverint Parentum oppositio non aliter locum habet quam si justas Dissensus causas proferant Ibid. P. 19. Si Titiae ea conditione Legetur si arbitratu Seij nupserit habetur pro non adjecta debetur Legatum licet conditioni non pareatur Christen de spons quaest 17. Si ad sponsalia clandestina quae consensu Parentum carent concubitus accesserit non confirmatur Matrimonium si parentibus justae causae sint dissensus haec sententia curijs Holland placuit idem quaest 20. Mensis SI Mensis simpliciter proferatur intelligitur de mense solari Duodecima parte anni vel triginta Diebus Thes Bes in Litera M. 68. verbo Monat p. 664. Mensura Taxative Demonstrative INterest utrum Mensura in venditionibus Taxative an vero
Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
by the Act of Parliament is secured and his Right cannot be questioned unless he be particeps fraudis or acquire the same without an Onerous Cause which by the Act of Parliament is only probable Scripto vel Juramento Yet the Lords enclined to reduce the Right granted by the Son unless it were offered to be proven that it was for an Onerous Cause in respect of several presumptions alledged and informed by the Pursuer And before Answer as to the Relevancy ordained both Parties to condescend upon their presumptions hinc inde of Fraud or the Cause Onerous for the granting of the said Right and to prove the condescendence I have ever thought that the practice of the Lords to ordain Parties to prove before Answer as it is late is accompanied with many inconveniencies seing by such Acts which are not of Litiscontestation Processes are still keeped loose and after that irregular way of probation the debate of Relevaney is again resumed to the great vexation both of Parties and Lords and after the Lords Interloquitor of Relevancy there may be again Litiscontestation So that upon the matter there are two Litiscontestations in one Cause Newbyth Reporter It being again debated What the Certification should be in such Acts. viz. Whether the Alledgance should be holden as not proponed or that the Lords should advise Which in effect is no certification The Lords were not clear to detetmine which is a great Informality and a pressing reason against that anomolous way D. 49. Reid contra Tailzifer 16. Novem. 1666. IN the case William Reid contra Tailzifer and Salmond It was Found That a Testament is to be thought execute so that thereafter there is no place to a non Executa when a Decreet is recovered against the Debitors though the Executor decease before he get payment Because the Right of the Debt is fully established in his person by the Decreet and he having done diligence it ought not to be imputed to him that the Debitor is in mora as to the payment of the Debt And there being Jus quaesitum by a Decreet and Execution having followed thereupon by Horning after which Annualrent though not due ex pacto yet becometh due ex lege or by Comprysing at the instance of the Executor and Infeftment thereupon It were absurd that all these Rights should evanish which would necessarly follow if there were place to a non Executa Seing the Decreets and Rights foresaid following thereupon could not be transferred or settled in the person of the Executor ad non Executa who doth represent the Defunct only and not the Executor at whose instance the Decreet is obtained and Execute D. 50. Purves contra Blackwood Eod. die ADam Purves having pursued Reduction and Improbation of a Comprysing and the Grounds and Warrands thereof against Blackwood The Lords In respect the Comprysing was deduced Twenty four Years before did refuse to grant Certification against the Letters ad Executions and against one of the Bonds being Registrate when the principal Bonds were given in to the Clerk Register to ly in publica custodia In respect of the Troubles of the Time and the loss and disorder of the Registers and that the Extract was produced and the Defender was content to abide at the Truth thereof Hay Clerk And Newbyth Reporter D. 51. Govan contra Paip 24. Novem. 1666. IN the case Govan contra Paip The Lords Found That an Assignation not being intimated in the Cedents time and consequently the Debt being in bonis Defuncti ought to be confirmed But the Lords in consideration that the Debt was small Found Process at the Assigneys instance he finding Caution for the Quot effeirand thereto D. 52. contra Miln Eod. die An Order being used for Redeeming a Wadset the Executor Creditor of the Wadsetter pursued the person in whose hands the Consignation was made for payment of the Sum Consigned And in the Process the user of the Order was called and Decreet was obtained but before it was Extracted he deceast and there was debate upon the Oath of the Consignator The Lords Found That the user of the Order being a person having interest and called ab initio nothing could be done until the Process was transferred against some person representing him In the same Process it was argued amongst the Lords whether a Sum being consigned upon an Order of Redemption the user of the Order may pass from it and lift the Sum without consent of the Wadsetter And it was remembered by some of the Lords That upon an Instrument of Consignation Process was sustained at the instance of the Wadsetter against the Depositar in whose hands the Sum due upon the Wadset was consigned for making the Sum forthcoming But in this case nothing was done It appeareth that after Consignation Jus is Quaesitum to the Wadsetter so that the Sum being consigned and sequestrate to his behoof cannot be uplifted without his consent D. 53. Lesly contra Bain 6. Decem. 1666. IN a pursuit to make forthcoming after serious deliberation and debate amongst the Lords as in a case daily occurring and wherein the Decision would be a preparative and practique It was Found That a pursuit to make forthcoming a Sum of Money due to a Debitor is in effect Execution and equivalent to a poinding Seing Money being in nominibus and not in specie could not otherwayes be affected and poinded and therefore could not follow but upon a Decreet and not upon a Bond not Registrate 2. It was Found that an Arrestment is but an Inchoat and incompleat Diligence and notwithstanding thereof the Sum Arrested remaineth in bonis of the Debitor Seing notwithstanding thereof Goods belonging to a Debitor may be poinded As also Arrestment being a Negative Diligence whereby a Sum Arrested is secured so that the Debitor cannot uplift and the person in whose hands the Arrestment is made cannot pay or give away the same in prejudice of the Arrester and as in immobilibus Inhibition doth not establish a Right in the person of the Creditor unless he deduce a Comprysing but doth affect the same so that the Debitor cannot prejudge the Creditor and his Diligence if he Compryse There is Eadem Ratio in Arrestments in mobilibus Upon these Grounds it was Found That the Debitor deceasing the Sums Arrested being in ejus bonis ought to be confirmed and that the Creditor could not have Action against the person in whose hands the Arrestment was made and the Appearand Heir of the Debitor called for his interest but should confirm himself Executor Creditor D. 54. Monteith contra E. Calender and Gloret 7. Decem. 1666. THE Laird of Parkley Hamilton as principal and Hamilton of Kinglassie and certain others his Friends as Cautioners being Debitors in Two Bonds Kinglassie in consideration that Parkley had Disponed to him a Right of Wadset which he had to the Lands of Touch by a Contract did oblige himself to satisfy and pay the Sums contained in the saids
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
Provision as charged to Enter Heir respective It was alledeged for the Heir of the first marriage that he offered to renunce And for the Heir of Provision that the Heir of Line ought to be first discussed by adjudication and condescended upon movable Heirship which might be adjudged It was Answered for the Heir of Line that his Father having provided him had taken from him a Renunciation of all that could belong to him as Heir So that he could have no Right to the movable Heirship which in respect of his Renunciation would be considered as other movables and fall under Executrie It was Replyed for the Heir of provision that by the Renunciation the Heir of Line had renunced his kindness to the effect his Father might have power to dispose of the Heirship but his Father not having disposed thereof the Right returned to the Heir of Line again the Renounciation being in favours of him and his Heirs as in Renounciations of that nature as to Lands if the Father does not dispose of the same they will notwithstanding belong to the Heir Some of the Lords thought there should be a difference betwixt Lands and Movable Heirship In respect the Right of Lands whereof the Father died infeft cannot be Setled in the person of any other but the Heir who therefore ought to have Right notwithstanding of the Renunciation But the Movables which should fall under Heirship by the Renunciation of the Heir cease to be Heirship and may be confirmed as other Movables Others Thought that the Effect of such Renunciations should be the same as to Movables and Lands the Fathers intention being one and the same for both and therefore as the Right in the construction of the Law returneth to the Heir of the Father who doth not otherwise dispose of his Lands there is the same reason as to movable Heirships And as to the pretence foresaid it is of no weight seing if it were the Intention of the Father that by such Renunciations the Son should be denuded without Return though the Father should not dispose of his Lands the Son may be pursued and forced to denude himself that his Renunciation may be effectual in favours of the nearest of Kin. The Lords before answer ordained the Renunciation to be produced that they might consider the Tenor of it D. 108. Tacksmen of the Custumes contra Greenhead Eod. die THe Custums of the Borders being set in Subtack to Greenhead and others by the Tacksmen of the haill custumes of the Kingdom Greenhead is pursued as representing his Father one of the Subtacksmen for the dutie the year 1650. It was alledged That the Subtack was altogether unprofitable upon the occasion of the English Invasion so that Beasts and other Goods were not imported nor Exported that year as they had been in use formerly It was Answered that albeit in praediis Rusticis in case of Sterilitie Vastation and such other Calamities that cannot be avoided There may be abatement craved Remissio Canonis yet in this case the Subject being conductio rei periculosae Jactus Retis the Subtacksmen ought to have no abatement and are in the same case as Tacksmen of Salmond fishing who will be lyable for the duty albeit no profit arise to them The Lords Found That Subtacksmen should have abatement But the Question being most Quatenus and concerning the proportion because though the Subtacksmen had undoubtedly loss yet it was not Total there being some Commerce betwixt the Kingdoms for that year some Moneths It was Found in end upon hearing of Parties that the half of the Dutie should be abated Actores Lockhart Cuninghame Alteri Sinclair Mr Thomas Hay Clerk The Law is very clear ff Locati and the Doctors upon that Title not only in praediis but in conductione vectigalium and the like in case of an insuperable Calamity remittitur Canon merces but they are not so clear as to the Quatenus and proportion of the abatement when the detriment is not Total But it is just the abatement should be proportionable to the loss And accordingly The Lords decided D. 109. Justice Clerk contra Lambertoun 23. Nov. 1667. IN the case the Justice Clerk contra Lambertoun the probation anent the value and worth of the Woods pertaining to the Justice Clerk and cutt and intrometted with by Lambertoun being advised It was considered and represented by some of the Lords that had been Commissionated to examine the Witnesses adduced by both parties being allowed to have a joynt probation that the probation was dubious the Witnesses for the Pursuer declaring too highly and the Witnesses for the Defender too low as appeared And that the Subject of the Question not being de re which is the proper Object of Sense but de rei valore qui cadit sub Judicium Intellectum The Testimonies of the Witnesses are not de rei veritate but de credulitate opinione and therefore are not numeranda sed ponderanda according to the circumstances both of their oun quality and the quality of the Declaration whether they have declared verisimilia and whether animose and such like and whether they have given a probable reason of their knowledge That in this case the Witnesses that have deponed most to the advantage of the Pursuer are his own Tennants and one of them a Smith his Officer that they give the reason of their Knowledge that they dwelt in the bounds which is not sufficient unless they had been periti and Conversant about the matter of Woods and the Buying and the Selling and the valuing of the same That some Witnesses for the Defender had given their Judgment upon oath as strongly and pregnantly as they though they be not so many So that the probation at best is but dubious and in dubiis minimum sequendum at the least the Lords have a latitude to found their Judgment upon the Testimonies of both cum temperamento and without adhering percisely to either The Lords Found nevertheless by plurality That they should have respect to what had been proven by the most part And accordingly Decerned D. 110. Rankin contra Skelmorlie and Dunlop eod die IN a double poinding at the instance of the Lord Melvil there being a Competition betwixt two Creditors of Antonia Broun Daughter and Heir to Sir John Broun The Lords preferred Skelmorly the first Arrester Though Rankin had obtained a Decreet to make forthcoming and had compleated his Diligence and alledged that an Arrestment is but an inchoate Diligence and doth not hinder any other Creditor to compleat and do more exact diligence by poinding or by a Decreet to make forthcoming which in Debts and in nominibus are equivalent The reason of the Decision was that Skelmorly had not only Arrested but had intented a pursuite before the Lords to make forthcoming before Rankin But Processes before the Lords being more tedious and the Pursuer not Master of Calling Rankin had taken advantage by obtaining a Decreet
conclude the Owners that they should not be heard thereafter to prove that the Loadning belonged to them Some thought it hard that the Skippers fraud or mistake should prejudge the Owners But because in the case there was no ground to persume that the Skipper and Steersman did intend to prejudge or wrong the Owners and the Writs and Certificats produced were all after the Seizure and the Letters which were of anterior dates might have been made up and were all from Persons concerned and there were Documents found in the Ship that could clear that the Loadning did belong to the Owners The Lords Sustained the Sentence unless the Pursuer would qualifie Foroe and Violence and that the Depositions were Extorted Hay Clerk D. 121. Homes contra Paterson 17. Dec. 1667. IT was Found that the Attester of the sufficiencie of a Cautioner being pursued for the Debt the Cautioner being distrest and discust and not Solvent and the Attester having alledged that he offered to prove that the Cautioner was then the time he became Cautioner habitus reputatus Responsal idoneus as to the Debt The alledgance is relevant and the Attester no further lyable D. 122. Sir Thamas Nicolson contra the Laird of Philorth 18. Dec. 1667. PHilorth elder being pursued as representing his Grand-Father for payment of a Debt due upon Bond granted by the Earl Marischal and his Grand-Father as Cautioner It was Alledged that the Bond being Dated above fourty years ago was perscribed It was Replyed that interruption had been made by payment of the Annualrents by the principal Debitor It was Answered it was prescryved as to the Cautioner there being no interruption by any Document or pursuit against him or payment by him The Lords repelled the Defence in respect of the Reply and Found that the ground of prescription as to personal actions being odium and negligentia non petentis that it doth not militate in this case the Creditor haveing gotten Annualrent so that he cannot be said to be negligent Lockhart alter Cuninghame D. 123. Gilespie contra Auchinleck Eod. die MAry Williamson Lady Cumblidge having Right not only of Liferent but also to the Fee of the said Estate by Comprysing and being about to Marry with Patrick Gilespie her second Husband for settling and preventing Questions betwixt her Children and her Husband she did Dispone the Fee of the Lands to her eldest Son with the burden of 5000. Merks to be payed to her second Son at his age of Twentie one years and to Entertain him in the Interim And at the same time her eldest Son did grant and sett a Tack to the said Patrick for a year after his Mothers decease if he should survive her of her Liferent Lands reserved in the Disposition mentioning their purpose of Marriage And that he was to stock the saids Lands and that his Wife might die before him upon which considerations the said Tack is sett At the same time the said Mary did privatly dispone her Liferent in favours of her second Son John Auchinleck who intented a pursuit against her and her said Husband for the Maills and Duties of the Lands for diverse years It was Alledged that the said Right being a privat latent Right the Defender ought to be free of bygones as being bona fide Possessor by virtue of his Wife's Infeftment and his Jus mariti It was Answered That he and his Wife are Eadem persona and she being his author cannot pretend that they possessed bona fide in prejudice of a Right made by her self The Lords Found the alledgances relevant It was further alledged that the Disposition made to the Pursuer was most fraudfully granted in prejudice of the Defender after Treatie of the Marriage and the said publick Transactions in order thereto Which were Equivalent to and to in lieu of a Contract of Marriage the Wife having no other thing besides to dispose of besides her Liferent to which the Husband has Right Jure mariti so that a Contract was not necessary as to that And that the said Right was retained by the Mother and not delivered until she was Married at which time she could not prejudge her Husband and that the Defender had a Reduction depending upon the reasons foresaid The Lords Found the alledgance relevant And found that an Assignation not intimat and not being made for an onerous Cause could not prejudge the Husband having by his Marriage a publick Right Equivalent to an Assignation and therefore assoiled It was not considered whether the Right was delivered or not being found latent as said is D. 124. Wilson contra the Magistrates of Queensferry 2. January 1668. ARchibald Wilson being charged to accept the Office of a Baillie of the Town of Queensferry Suspended upon the Act of Parliament Jam. 3. Parl. 5. Chap. 29. whereby it is statute that Magistrates within Burghs should not be continued longer than a Year and subsumed that he had served the preceeding two Years This case being Reported The Lords Found the Reason Relevant And albeit the Act of Parliament be not in observance specially in Edinburgh The present Provost having been in that place diverse years yet the Ambition and unwarrantable practice of those who violate the said Act and others made to that purpose ought not to prejudge others who are most sober and claim the benefite of the same D. 125. contra 3. January 1668. A Wife provided to an Annualrent in Victual out of certain Lands by her Contract of Marriage did renounce the same and thereafter was Infeft in an Annualrent out of other Lands And upon the said last Infeftment a Process being intented for poinding of the Ground It was Alledged that the Seasin was null being alledged to be given by a Husband propriis manibus and the Assertion of a Notar without any precept or warrand in Writ It was Answered That the Marriage with the Relicts Renounciation of her former Right and her Contract of Marriage being all produced are sufficient Adminicles to sustain the same The Lords enclined to favour the Relict yet they found it of a dangerous consequence that a real Right should depend upon the Assertion of Notars and witnesses And the Question not being whether the Husband might or ought to have given his Wife the said Right in recompence of of her former But whether de facto he did the same Seing the foresaid Writes having no relation to the Seasin either as given or to be given could not be Adminicles to warrand or sustain the same And therefore before Answer it was thought fit to enquire if there had been any Decision in the like case as was informed D. 126. Sir John Home contra The Feuars of Coldinghame 7. January 1668. IN a Process at the instance of Sir John Home of Rentoun Justice Clerk contra The Feuars of Coldingham The Defenders offered to improve the Executions It was Answered They could not be heard unless they would propone the said Alledgance peremptorie but
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
he cannot make voluntar payment in prejudice of a Creditor who has done Diligence Gibson Clerk D. 175. Kilbirny contra Cuninghame 24. July 1673. IN an Adjudication upon the late Act of Parliament The Lords modified the price to be 18. years purchase as to the certain and constant Rent and 9. years as to casual Rent of Coal Gibson Clerk D. 176. Murray contra The Tutor of Stormount 25. July 1673. BY a Contract of Wadset the Wadsetter being lyable to compt for the excrescence of the Duties more than should satisfie the Annualrent The Lords in a Process for Maills and Duties Found the Exception Relevant that the Pursuer was satisfied of the Sum upon the Wadset by his Intromission without Declarator D. 177. Ker contra Ruthven eod die THE Lords Found That the Estate of the Earl of Bramford being settled upon the Lord Forresters Son by Act of Parliament he could not have it but cum sua causa and the burden of his Debts Item They Found That the Earl having entertained his Grand-child the Pursuer was to be presumed to have done it ex pietate avita the Earl being a generous person and having an opulent Estate and his Grand-child having nothing for the time but the Debt in question whereof the Annualrent was provided and belonged to his Brother Monro Clerk D. 178. Creditors of Hugh Sinclair contra Annandale 26. July 1673. THE Lords Found That a Compryser upon Debts anterior to the Debitor's Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat Mr. Thomas Hay Clerk D. 179. Mr. John Bayn contra Caivie eod die THE Lords Found That a Tack being questioned as antedated to obviate an Inhibition was suspect being rased in the Date So that the same seemed to be vitiate and an other year superinduced And therefore was not a valide and probative Writ in prejudice of the Inhibition unless it could be adminiculate by some Adminicle before the Inhibition Mr. Thomas Hay Clerk D. 180. 2. June 1674. THE Kings Majesty having by two Letters to the Lords of Session presented Mr. David Balfour of Forret and Mr. Thomas Murray both Advocates to be Lords of the Session It was moved by one of the Lords that seing by the Law and Acts of Parliament these who are to be admitted to be Lords of Session should be tryed Therefore the Tryal should be such as is intended by the Law the very Notion of Tryal importing at least a serious if not a strict and exact way of Tryal This was moved because the way of Tryal had become of late so perfunctorious and dicis causa that it was ridiculous and in effect a Mock-Tryal Some of the Lords being appointed to examine these who were named by the King and after they had asked some trivial Questions having made Report That they found them qualified albeit it was not only known to the Examinators but to all the Lords and notour to the World that they were altogether Ignorant both of Law and Practique and did acknowledge it themselves not dareing to expose themselves to sit in the Outer house as Ordinaries they prevailing with others of the Lords to go out and officiate for them as Curats 1. It was urged that the Estates had considered the Interest of the Kingdom all Estates being concerned in that Judicatory that the Lords should be Persons of great Abilitie and Integrity seing their Lands and Fortunes and greatest Interests are the Subject of their Jurisdiction and Decisions and therefore it was provided by diverse Statutes and Acts of Parliament they should be qualified Persons and found upon Tryal to be such 2. His Majesties Letter required that the Persons now named should be examined effectually 3. By diverse Acts of Sederunt and in special one upon the Kings Letter for the time the way of Tryal is prescribed which is most exact 4. The Oath of Admission that the Lords should be faithful has and ought to have Influence upon all their Actions as Lords of the Session that they should be done faithfully and the Tryal of Lords for the Reasons foresaid being an important Act of Duty ought to be done faithfully and sincerely and cannot be done otherways without breach of Oath 5. To pretend to obey the Law and the Kings Letter which requireth an effectual Tryal in a way which is superficiary and evidently ineffectual it is a Cheat and Circumventio Legis which in others is hateful but in Judges who are Antistites Juris is abominable and inconsistent with the Honour and Integrity that should be expected from the Judicatory 6. If there were no Tryal at all the Lords would be passive if Persons not qualified should be named but being enjoyned to try effectually if they receive them without an effectual tryal they are not free of blame and are accomptable to God and his Majesty and to the Parliament To all these Reasons It was Answered That at this time the way of Tryal that had been for a long time should be continued at this time and that the Motion was upon some design The Mover did purge himself upon Oath that he had no Design but to do duty and did attest the President that before this occasion they had spoken often to that purpose and did represent that this is the fit time to put the Law and Statutes in execution The Persons named being Advocats and Persons presumed to be able to undergo the Tryal so that it cannot be thought that there is any thing of Design against their Persons That it cannot be denyed but the late way is abusive and antiquitas erroris or abusus cannot be thought and pleaded to be custom That in the Year 1629. the Lords by an Act of Sederunt had renewed and ratified all the former Statutes anent the Tryal and Admission of the Lords and ordained them to be observed That since that time the Troubles interveened and continued long so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour It was Carryed That the Examination should be as it has been of late and upon the Report of Gosford and Craigie appointed to examine them they were admitted Gosford was of Opinion that there should be another way of Tryal D. 181. Bogie contra The Executors of the Lady Oxenford 4. June 1674. THE Executors of the Lady Oxenford being pursued at the instance of a Legatar did in the Compt before the Auditor give in an Article of Discharge viz. That the Expences of a Process at the Executors instance should be allowed It was Answered That if the Executor had not pursued that Process there was as much free Gear as would have satisfied the Legacie and the Executor had not prevailed and if they had prevailed the benefit would only have accresced to the Executor and not to the Legatars and therefore penes quem emolumentum c. and seing they would have had no benefite they should have no
Patrimony of the Town but that the same had been acquired by the Town and thereafter had been Feued out by them in the Terms foresaid for payment of a Feu-duty pro omni alio onere they were of the opinion that they could not be Lyable to a Servitude unless the same had been constitute either by their Infeftments or otherwayes But specially in this case they being free by their Infeftment and express Clause therein of all burden or Servitude but their Feu-duty And that they could be in no other case than if the Town of Edinburgh should Feu any of the Lands lately acquired by them for payment of a Duty pro omni alio onere And yet the plurality of the Lords were of the opinion that if the Town could prove and make appear that they have been in use by the space of 40 years or above to Stent their Feuars for defraying their Affairs and Burdens and Works of the Town that they ought to be Lyable notwithstanding of the said Clause pro omni alio onere And accordingly before Answer a Term is Assigned for proving the Towns Possession In the interim The most Eminent of the Advocates and in special such as were for the Town being discharged pleading upon occasion of the Appeals this case came in Agitation the last Session and some of the Lords even these that were of the opinion formerly that the Feuars should not be Lyable to be stented upon the ground and mistake foresaid that the said Lands of Drakes was not a part of the Ancient Patrimony of the Town they were convinced upon the production of the Towns Evidents that the said Lands were a part of the Ancient Patrimony of the Town being Incorporate and contained in their Infeftments with the Burgh it self bearing one individual holding and Reddendo And therefore conceiving that est Judicis supplere quae desunt Advocatis in Jure and which arises upon production of the Papers they did argue that the Feuars ought to be Lyable for these Reasons 1 That there is a difference betwixt the Original Patrimony of the Town which is profectitious and flowes from the Bounty of Princes and is given to Burghs Royal for sustaining and defraying their necessary burdens and occasions and betwixt that which is adventitious and acquired by Burghs themselves by their own Moyen and Means As to the first The same being given eo intuitu and to the end that it should be a Stock for doing and defraying the Common Affairs and burdens and Charges of the Town it cannot be given away nor Feued but cum sua causa and so that they should be Lyable to Stents and Impositions upon occasions requireing the same Whereas the other is acquired by Towns as quilibet and the Feuars ought to be considered as quilibet and as in the case of other Feuars 2. Upon the consideration foresaid it is statute by diverse Acts of Parliament and in special by the 36. Act. K. Ja. 4. Parl. 3. And the 181. Act. K. Ja. 6. Parl. 13. That the Common Good of Burrows should be observed and keeped to the common profite of the Town And the said Act of K. Ja. 4th bears That Lands Fishings Milns and others belonging to the Burrows should not be set but for 3. Years allenarly and if any be set otherways that they be of none avail And as this is Law so it is just otherwayes those who have Tenements within Burgh and who upon occasions are Lyable to be Stented should be unjustly and heavily prejudged if the Lands and Fishings which being in the Towns hands would be lyable in the first place to such Burdens may be given away so that the whole burden should be rolled over upon them 3. The foresaid pretence That the Feuars were Lyable only to the Feu-duty pro omni alio onere was Answered viz. That omne aliud onus was to be understood of any other ordinar duty payable to the Town as Superiors but does not exempt the Feuars from these munera extraordinaria Patrimonialia for the necessar use and preservation of the Town As in the case of Lands disponed to be holden of the Disponer for payment of a Blensh or other Duty pro omni alio onere The Clause foresaid will not exempt the Vasal from Taxations and the Superiors relief of the same against his Vasal 4. It appears by a Ratification of Queen Mary produced for the Town That the Town of Innerness had made diverse Acts concerning the setting the Lands Milns and Fishings which are ratified by the said Queen And which if they were observed would oblige the Feuars to be lyable to to be Stented The saids Lords Who were of the said opinion thought That upon the Grounds and Production foresaid the Feuars of Drakies ought to be lyable without any farther probation to Stents imposed for the use and interest of the Town the same being imposed necessarly and equally according to the method abovementioned And yet the Town having adduced probation by production of the Records out of their Books and Witnesses they considered and thought that the possession of the Town by imposing their Stents by the space of 40. years was proven In respect it appeared by the Extracts out of their Books That from the year 1624. until 1664. they have been in use to impose Stents in case of Exigency for the private use and concerns of the Town Notwithstanding of what was alledged at the Bar against the said probation and in special that the Books themselves ought to be produced whereas there was nothing produced but Extracts of Acts and that the probation that the Town has been in use to Stent for repairing their Bridge did not quadrate to the case and point in question seing it was to be proven that Stents were imposed for the private use and concerns of the Town and the Bridge and repairing of the same is of publick concern and interest relating not only to the good of the Town but of the whole Shire And the Record anent Stent in relation to the Bridge being out of the way and not considered as a probation It was not proven that the Town had been in Possession 40. Years Nevertheless The plurality of the Lords did Find the Alledgeance foresaid of Possession by the time foresaid not proven upon that ground that the Bridge was not to be considered as the proper concern of the Town And did suspend and declare in favours of Inches and other Feuars Diverse of the saids Lords dissenting upon the Grounds foresaid and that it appears to them that the Feuars upon the account of their Lands were Lyable to be Stented being the ancient and proper Burgal Patrimony of the Town And albeit a continued tract of Possession by the space of 40. years which hardly is to be expected in servitutibus or impositions that are discontinue could not be made out as they conceive it was yet the Feuars having homologate and consented and submitted to
of Parliament their Sallary being enlarged and settled upon them otherwayes And if during the time the said Lords had their Sentence Silver any of them had deceased before Sentence tho the Process had been commenced and advanced beyond Litiscontestation it cannot be said that the Executors of a Lord deceasing before the Sentence could claim any part of the Sentence Money where the Sentence is pronounced after his decease 3. By the 28. Act of his Majesties Parl. 1661. the Quots of Testaments are discharged and yet the Bishops being restored to the Right of Quots the same will be due for any Testament confirmed thereafter notwithstanding of the said Act of Parliament whereas if Quots were due from the time they became confirmable they could not be claimed tho confirmed since the Bishops were restored as said is to their Quots as being discharged by the said Act of Parliament The Lords did also Find That the Bishops Relict and nearest of Kin had Right to an Ann even before the late Act of Parliament being the 13. Act of the 3. Session of His Majesties second Parliament concerning the Ann due to the Executors of Bishops and Ministers In respect by a Letter of His Majesties Grand-father in anno 1613. and Act of the Bishops thereupon an Ann was Found to be due to the nearest of Kin of Bishops But in regard by the said Letter and Custom before the said late Act of Parliament the Ann in relation to Bishops was if the Bishop deceased before Michaelmass after the Moneth of _____ his Executors had the half of that year as belonging to the Bishops Incumbent Jure proprio and the half of the next year as Ann the half of the Rent of his Benefice for the half year preceeding Michaelmass the other half being due to him as Incumbent and fallen under his Executry Whereas by the late Act the said Ann is so ordered that the Bishop or Minister surviveing White-sunday the half of that year does belong to him and his Executors upon account of his Incumbency and the other half for the Ann And the Incumbent surviving Michaelmass he is to have the whole Year as Incumbent and the half of the next year is to be Ann Therefore the Lords Found That the late Bishop having deceased before Michaelmass and before the said late Act of Parliament the Ann should be as it was formerly In the same Process It was debated among the Lords more fully than at the Bar whether the Quots of Testaments should fall under the Ann And it was urged by some that the Quots of Testaments are but casual Obventions and that they are due as said is upon the account foresaid viz. That Testaments are confirmed by the Bishop or his Officials and ratione operae and as Sentence-Silver so that they cannot be due but to the present Incumbent who does a duty and that Compositions for entering of Vasals and Liferent Escheats and Non-entrys and such like casualities do not fall under Ann. Whereunto It was Answered That by the Kings Letter by the Act of Parliament and by the Canon Law the half of the Rent of the Benefice Stipend and Living fall under the Ann and the Quots of Testaments are a considerable part of the Bishops Rent especially in Edinburgh and undoubtedly is a part of his Living and Benefice And the Rent of Milns which is casual and depends where there is no astriction upon the arbitrary will of Parties to come or not to come to the same and is likewayes due ratione operae doth fall under Ann As also the Rent of Fishings and such like which are casual And there is a great difference betwixt Quots which is an ordinary yearly Rent and cannot fail so but there will be still Testaments confirmed and the casualities of Superiority as Liferents c. which are so uncertain as that it cannot be said they are the Bishops Living And the Argument that Quots are due ratione operae and by reason of actual confirmation which cannot be due by the Executors or Relict is of no weight seing the other constant Rent of Stipends and Benefices is due ratione operae and because the Bishop or Minister serveth which is not prestable by Executors or Relicts The Lords notwithstanding enclined to Find That the Quots do not fall under the Ann but upon the motion of some of their Number that the Interloquitor being to be a preparative should be further considered they thought fit not to proceed to the Voting Gibson Clerk Forret Reporter D. 195. Craig contra Edger 20. Novemb. 1674. THE Lords Found That a Bond bearing Annualrent being Assigned by a Woman to her former Husband by her Contract of Marriage and the Assignation not being intimate a Retrocession did settle again the Right of the said Bond in the Person of the Wife Quia unumquodque dissolvitur eo modo quo contrahitur And the said Bond being thereafter assigned in favours of the second Husband he and his Executors had Right to the same and that it was not in bonis of the first Husband though the Retrocession was not intimate until after his decease Lord Glendoick Reporter Mr. John Hay Clerk D. 196. Thoirs contra Tolquhon eod die MR. David Thoirs in an Improbation at his Instance against Tolquhon of a Bond did crave Certification because the Principal was not produced but an Extract out of the Commissars Books of Aberdeen The Lords upon a Report having debated amongst themselves what was fit to be done in the said Case seing it appeared that the said Pursuite was intented not of design to question the Bond upon evident and probable Grounds of Falsehood but only to have it produced and it appeared by many Presumptions that the Bond was a true Deed and never questioned by the granter ex capite falsi tho he had suspended upon other Reasons And there had been much diligence by Decreets Horning and Comprysing upon the same and yet the Bond being of an ancient Date beyond 40 years there was no person living that could prove the Tenor thereof and declare that they knew the same to be a true Deed And on the other part the Lords could not refuse to grant Certification seing an Extract does not satisfy in an Improbation where the Principal was not produced It was moved by some of the Lords That if the Pursuite was not intented within the years of Prescription that it should not be sustained seing albeit causa falsi doth not prescrive where the Paper or Subject craved to be improven is produced and the Pursuer offers to improve and make it appear that the same is false yet when the Improbation is only to try the condition of the Defenders Right and in order to a Certification if the Principal cannot be exhibit it is not properly causa falsi And the effect of the Certification is only that the Write for not production should be holden as false praesumptive and fictione Juris And upon the matter it
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
Fidejussoribus ff lib. 46. Tit. 1. leg 39. Et leg 36. ibid. Et. Leg. 11. Cod. eod Tit. The Lords Decided as said is In respect of a Practique produced betwixt _____ in anno _____ relating to a former Practique in anno _____ D. 229. The Minister of Tulliallane contra Colvill of Larg and Kincardne 28. January 1675. IT was Found by the Lords Commissioners for Teinds That the Heretors of Lands having Right cum decimis inclusis were not lyable to the Augmentations of Ministers Stipends and that no Locality could be given out of their Teinds the saids Infeftments being before the Year 1587. And that the Feu-duty payable to Church-men for Stock and Teind in Victual was not lyable thereto because the Teinds not being separate from the Stock and the Heretors having Right to the Lands free of Teinds in effect there were not decimae And by the Acts of Parliament and the Kings Decreet Arbitral Teinds are lyable to Ministers Feu-duties in consideration that the Lords of Erection and Titulars had Right thereto from the King since the Act of Annexation And that the King who might have questioned their Rights was pleased by the said Acts of Parliament and Decreet Arbitral to affect them with the burden of Ministers Stipends whereas such Rights cum decimis were granted by Church-men and did not flow from the King but from them at such time as by the Law then standing they might have granted the same D. 230. Doctor Hay contra Jamieson and Alexander eod die GEorge Steuart Advocate having comprised from _____ Con the Lands of Artrochie and others did dispone the said Lands and his Right of Compriseing to _____ Neilson and thereafter the said Neilson failing in payment of the price the said George Steuart did Comprise back from the said Neilson the said Lands and Andrew Alexander did also comprise from the said Neilson the said Lands and his Right foresaid Doctor Hay Having also comprised from _____ Con the foresaid Lands pursued an Improbation of the said first Comprysing at George Steuart's Instance and having called thereto the said George Steuart and Neilson and Marjorie Jamison who pretended Right to the said Lands he did obtain a Certification against two Bonds which were the Ground of the said Comprising upon Compearance and a long Dependance and long Terms assigned for produceing the said Bonds And thereafter the Doctor pursued a Removing from the said Lands against the said Andrew Alexander and others And it was Alledged for the said Alexander That he had Right to the said Lands and was in Possession upon a Right from George Steuart who had Right thereto as said is by a Comprising against _____ Con the common Debitor Whereunto It was Answered That the Defenders could not found a Defence upon George Steuart's Comprising Because the saids Bonds being the Grounds thereof were false and improven To which It was Duplyed That the Certification against the said Bonds was only granted against George Steuart and that the said Andrew Alexander was not called and that now there is produced the foresaids Bonds And that the Extracts of the same out of the Register of the Commissariot of Aberdene had been formerly produced but the Principals which were in publica custodia as the warrands of the same could not be then found by reason of the disorder of that and many other Registers upon occasion of the late Troubles and the same being now found aught to be received and sustained as the Grounds of the said Comprysing Seing they are not improven and found false by a Decreet of Improbation upon tryal of the Falsehood But a Certification is only given against the same for not production which at the most doth amount only to a presumptive Falsehood which is now taken away as said is by production of the saids Bonds seing praesumptio cedit veritati It was Answered for the Pursuer That all Persons whom he was obliged to take Notice of and to call to the Improbation of the first Apprysing were called viz. The said George Steuart at whose Instance the said Comprising was deduced and who had also Comprised from Neilson the Right thereof as said is and Neilson himself and that he needed not call the said Alexander who had only a subaltern Right and was not infeft and albeit he had comprised from Neilson yet by that Comprising he had not such an interest as the Pursuer was obliged to know in sua far as the Right of the Lands in question was settled in the Person of the said George Steuart by the Comprising against Neilson after which Neilson had only a Reversion and the said Neilson was called himself as said is And the said Alexander's Right by his Comprising against Neilson being only a Right of the Legal of George Steuart's Comprising against Neilson the Pursuer was not holden to take notice of the said Right and the said Reversion is not only now expired but was expired the time of the obtaining of the said Certification no Order being used thereupon And albeit the said Andrew Alexander was not called yet he did compear in the said Improbation and albeit he pretends that his right was reserved the said pretence is of no weight seing it was reserved only as accords And Certifications being the great Security of the People and specially where the same are obtained upon compearance and after diverse termes are assigned and after Certification granted the samen stopt for a long time upon expectation that the Writes may be got as in this Case the samen cannot be canvelled and loosed praetextu Instrumentorum noviter repertorum The Lords For the Reason foresaid thought hard to loose the said Certification but specially in this case seing the said Alexander will have and take the advantage of Stuarts expired Comprysing and exclude the Doctor who was a true and real Creditor to whose prejudice the said George Stuart and the other Defenders had patched up not only the said Comprysing for small Sums but other Rights which the Donator had been forced after he had Comprysed to question by a Reduction and had prevailed after a long dependence and after they had possest the Lands for a long time And on the other hand the said principal Bonds being now produced they thought it hard that the Doctor should take advantage of the same to exclude the Defenders altogether and therefore they proposed to the Doctor that he should grant a Reversion to the said Alexander upon payment of what was justly due to him within the space of two Years And the Doctor acquiesceing they decerned in the Removing with the quality foresaid Lord Glendoick Reporter Gibson Clerk Actor Chalmers alteri Thoirs Vide 17. February 1676. inter eosdem D. 231. contra Maxuel 29. January 1675. A Bill of Exchange being drawn upon three Merchants without mentioning that it was drawn upon them either severally or conjunctly and one of the persons upon whom it was drawn being pursued for the whole Sum
in the said Bill being accepted by them all simply without mentioning that they had accepted the same only for their own Parts It was Alledged That they were only lyable for their own Parts being correi debendi which is understood in Law that they should not be lyable in solidum unless it were so exprest especially seing the Pursuer cannot say that they were either Partners or that each of them had provision extending to the whole Sum. The Lords having thought fit to try the custom of Merchants and to take the opinion thereupon of certain Merchants in Edinburgh and the Report being positive that it was the custom of Merchants both in the place where the Bill was drawn and here that there should be Action in solidum upon such Bills when they are drawn and accepted simply in manner foresaid Found the Defenders lyable in solidum D. 232. McKintoish contra McKenÈe 29. January 1675 A Decreet against a person holden as Confest before the Lords of Session about 20 Years agoe was questioned as null upon that pretence that it did not bear that the Party against whom it was given was personally apprehended but only that he was lawfully cited The Lords Found That after so long time the said Decreet could not be declared null and void upon pretence of an intrinsick Nullity In regard the said Decreet did bear that the Defender was lawfully cited to give his Oath and he could not be thought to be lawfully cited unless he had been personally apprehended and praesumitur pro sententia and that omnia are solenniter acta unless it were made appear by production of the Execution that the Defender was not personally apprehended And therefore the said Reason of Nullity was Repelled Reserving Action of Reduction as Accords Monro Clerk D. 233. Scrimzeor contra Kingheny 2. February 1675. MAjor Scrimzeour having named in his Testament in Anno 1650. Sir John Carnagie and the Tutor of Purie Fodringhame and Alexander Wedderburne of Kinghenie to be Tutors to his two Daughters Margaret Scrimzeour one of the said Daughters pursued the said Alexander Wedderburne for Compt and Reckoning and Payment and an Auditor being appointed and that Question being started before him viz. Whether the Tutor should be Lyable for Negligence from the time that he accepted or before after he knew that he was named Tutor And upon the Auditors Report It was Found by the Lords that he should be lyable only from the time of his accepting and yet the Pursuer having desired and got a Hearing in the Innerhouse It was again urged for her that the Tutor should be lyable after he knew that he was named and did cease to do that Diligence that was incumbent to him and diverse Citations were adduced from the Civil Law and the Titles of the ff Cod. De Tutela Tutoribus And De Administratione periculo Tutorum which ought to militate in this case especially in respect the said Defender was not only named Tutor but was a Legator a considerable Sum being left to him by the said Testament which Law presumes was left to him in contemplation of the burden of Tutory put upon him so that having accepted the said Legacy and having confirmed himself Executor Legator he could not decline the Office not to be Lyable as Tutor or ut Protutor And it was farder urged that as Executor Legator he was lyable to do Diligence To which It was Answered That the former Interloquitor was opponed being just and upon Relevant Grounds of Law in respect the Civil Law is not received by us altogether in the case of Tutors the Office of Tutorie by the Civil Civil Law being munus publicum necessarium which no person can decline unless he have and alledge a just Ground of Excuse within the time limited by that Law whereas by our Law and Custom when any person or persons are named Tutors they are at liberty to accept the said Office or not so that a person named Tutor until he accept neither is nor is obliged to do the Duty of a Tutor And albeit by the Civil Law a Legacy being left to a Tutor is presumed to be left eo intuitu and upon condition that he should accept to be Tutor yet by the Civil Law if the person named Tutor do not actually get the said Legacy nisi consecutus sit which are the words of the said Law he is not obliged to accept the said Office and it is not nor can it be said that the Defender got the said Legacy before he did accept And as to that other Ground that the Defender being Executor Legator was obliged to do Diligence It was Answered That by late Decisions an Executor Creditor is only lyable to intromet in order to his own satisfaction and an Executor qua Legator is in the same case as an Executor Creditor seing a Legacy is a Debt payable out of the Executry and the Legator has no interest to confirm but to the effect he may be payed of the same The Lords Found That a Tutor is lyable only from the time that he did accept and that the leaving to him and his accepting of a Legacy did not alter the Case unless before his accepting of the said Office he not only had owned but got the said Legacy And this Pursuit being only actio Tutelae and for Compt and Reckoning against the Defender as Tutor they did not determine the said Question How far an Executor Legator should be lyable but reserved the same until the Defender should be pursued as Executor The Lords in the Debate amongst themselves some of them did urge these Arguments That a Tutor being lyable only ratione Officii he cannot be lyable before he accept the said Office it being inconsistent with Law that he should be lyable to the Duty of an Office before he have it which would be Filius ante Patrem 2. In Law a Tutorie is quasi Contractus and as in all Contracts it is required that there should be the mutual Deeds of both Parties contracters and the Nomination which is the Deed of the Defunct did not bind the Tutor until he bind himself by accepting which is his own Deed. 3. That a Tutor having a Legacy should be obliged to accept it is only provided by the Civil Law which is the Municipal Law of the Romans and is not of force with us until it become our Law either by a Statute or Custom authorizing the same and even by the Civil Law praesumitur only that the Legacie left to the Tutor is upon the account foresaid but that Presumption is only in the case where it cannot be thought that the Defunct would have left the Legacie upon another account viz. of Relation or any other Consideration Whereas in this case it cannot be thought that the said Legacy was left to the Defender upon the account that he was Tutor in respect he being the last named of the three Tutors there were
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
the said Disposition and yet these in whose favours the Disposition is made may choose Curators who will have the Administration of any other Estate belonging to them But if they be Puberes their persons are free and neither of the said Administrators can pretend to the keeping of them quia curator datur rebus D. 317. McKneish contra Bryce and her Husband eod die A Woman being pursued upon a Bond and having alledged that it it was Null because she was vestita viro The Reply that she promised payment after her Husbands decease tho the Sum was only 100 lib. Scots was Found not to be probable by Witnesses Glendoich Reporter D. 318. _____ contra _____ 16. Decem. 1675. THE Lords Found That a Merchant being in use to furnish diverse Years That a current accompt did not prescrive Tho some were of Opinion that the Act of Parliament bearing no distinction the Articles of Accompt ought to prescrive from their Respective Dates Seing otherways the Act of Parliament may be eluded both in the case of Compts and other cases which prescrive by the Act. Nevoy Reporter D. 319. Wilson contra Deans 17. December 1675. IT was Found That a Woman keeping a Shop and Traffiqueing as a Merchant with the knowledge of her Husband he is Lyable for Debts Contracted by her upon the account of her Traffique Actione institoria Forret Reporter D. 320. Thomson contra Mr. James Eleis eod die THE Lords Found In the case of a Right of Moveables granted by a Husband to his Wife with the burden of his Debts and a Provision that they shall be affected with the same That the property of the Goods is settled in the person of the Wife so that she may dispose of the same And these who acquire Right thereto are not concerned to enquire whether the price be converted to the use and satisfaction of the Creditors who will have a personal Action against the Wife So that she will in effect be in the case of an Executor and Trustee But if the Goods so affected be extant the Creditors of the Husband will be preferable to the Wifes proper Creditors her Right being fiduciary as said is and to the use foresaid Praesentia Vide supra 9. December 1675. The Creditors of James Mastertoun D. 321. _____ contra _____ 21. Decem. 1675. A Father having made a Disposition in favours of his Son reserving his own Liferent with power likewayes to dispose of what he had provided did appoint certain Persons as Curators and to have Administration of what he had provided dureing not only the Pupillarity but the Minority of his Son and nevertheless his Son having chosen Curators after his Pupillarity there was a Competition betwixt the said Curators and the Person appointed by the Father to Administrate The Lords Found That the Son as to his Person was not in potestate of either of the said competing Curators seing Curator non datur personae sed rebus and as to any other Estate belonging to the Minor any other way than by the Provision of his Father the same was to be governed by the advice of the Curator named and chosen by himself But the Lords demurred as to that Question viz. Whether the Father might affect the Right granted by himself with the Quality and Provision foresaid that the Person named by him should have administration of the Estate disponed by him And some were of the Opinion that there is a difference betwixt a Stranger and a Father in respect Strangers are not obliged to give and what they are pleased to give they may affect and qualifie their Right thereof sub modo and with what Provisions they think fit whereas a Father has a Duty lying upon him in nature to provide his Children and by the Law he may name Tutors to his Children but after Pupillarity he cannot put them under the power of Curators without their own consent and if this practice should be allowed there should hereafter be no election of Curators They did also consider that the Right granted by the Father was in effect donatio mortis causa seing the Father retained possession and a power to revock And it seemed that as the Father could not in Testament make Curators so he could not do the same by a Legacy or any such Donation mortis causa D. 322. Mr. of Rae contra Dumbyth 8 February 1676. IN a SpuilÈie at the Instance of the Master of Rae against Dumbyth It was Alledged The Pursute was prescrived because not intented within 3. Years so that it could not be sustained to give the Pursuer Juramentum in litem and violent Profits It was Replyed for the Pursuer That long within the 3. Years a pursute for Depredation had been intented before the Justice Which being of a Higher Nature and including Virtually and in consequence the conclusion of Restitution and Profits was a sufficient Interruption as to this pursute The Lords notwithstanding Found the pursute prescrived Newbyth Reporter Mr. Thomas Hay Clerk D. 323. Riccarton Drummond contra _____ eod die THE Lords Found That a special Service in an Annualrent doth give Right to Heretable Bonds and all other Heretable Estate whereupon Infeftment did not follow and includes a General Retour as Homo doth include Animal Newbyth Reporter Hamilton Clerk D. 324. _____ contra _____ eod die THE Lords Found That when Creditors did compear in Adjudications not being called they ought to be admitted with that quality that since the course of the Adjudger is stopt by their Compearance the Adjudger shall be in the same case as to any Adjudication at their instance as if both Adjudications were within year and day D. 325. Colledge of Aberdeen contra _____ eod die THE Colledge of Aberdeen having Right by Act of Parliament to the Vacant Stipends within the Bounds thereinmentioned pursues for a Vacant Stipend the Bishop of Ross compeared and alledged That the Kirk was his Mensal Kirk so that there could be no Vacant Stipend The Lords Found That the Colledge should have Right to any Stipend that belonged to the former Ministers either modified to them or of which they have been in Possession and that it was consistent that the Kirk should be Mensal and yet the Minister should have a Stipend and that the Pursuers should have Right thereto being Vacant Craigie Reporter D. 326. _____ contra _____ 9. February 1676. IN a Suspension a Reason of Compensation is lybelled viz. That the Charger was debitor to the Suspender upon account of a Fraught and it was offered to be proven by the Chargers Oath that he was so Debitor and by Witnesses what the Fraught extended to The Lords Found the Letters orderly proceeded and that Compensation was de liquido in liquidum and not de liquidando by Witnesses D. 327. _____ contra _____ eod die A Pursute was intented for a Sum of Money which the Defender was obliged by his Promise to pay in case he should be married having gotten
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
prejudged by any Deed of the Rebel in filling up of the same It was also Found That albeit the Lord Bamff by his Letter was bound up that he could not question the said Bonds upon the pretence foresaid of Condictio or any other that might have been competent against the said John Lyon Yet notwithstanding of the said Letter the King might have given and he might accept either a Gift of Lyons Escheat or a Right from the Donator and thereupon might claim Right to the said Sums Thesaurer Depute Reporter Mr. John Hay Clerk D. 406. Tennent Young and others contra Sandy Procurator-Fiscal of the Regality of Ogilface eod die IN a Declarator of a Liferent-Escheat It was Alledged That there could be no Escheat upon the Horning Lybelled Because it was upon Letters direct by the Secret Council upon a Decreet of a Regality Court And by the Acts of Parliament The Lords of Session are only warranted to direct Letters of Horning summarly upon the Decreets of Sheriffs and Baillies of Regality and other Inferior Judges The Lords Thought That the Council could not direct Letters of Horning upon the said Decreet Seing before the Acts of Parliament Letters of Horning could not be direct upon the Decreets of Inferiour Judges summarly without a Decreet Conforme before the Lords of Session And Statutes being Stricti Juris the Council could not direct Letters unless by the same Statute they had been warranted to that effect and it appears that the said Statute was founded upon good Reason and Considerations tho they be not exprest viz. That the Lords of Session are always sitting in the time of Session and in vacance there is some of their Number appointed to receive and pass Bills of Suspension if there be cause whereas the Council sitteth but once a Week ordinarly in Session-time and in Vacance but thrice 2. The Lords do not pass Suspensions but upon good Reasons and they are to consider the said Decreets which is not proper for the Council 3. As Suspensions are raised of the said Decreets so oft times there is a necessity of raising Reductions and the Lords of Council are not competent Judges to the Reduction of the said Decreets But the Lords thought not fit that there should be a question betwixt them and the Council concerning their Priviledge and therefore did forbear to give answer until some accommodation should be endeavoured And it was proposed by some that the Decreet of the Regality Court being for keeping of Conventicles and that practice concerning so much the Peace of the Countrey that all Disturbance thereby might be prevented and upon that account it being recommended to the Council by Act of Parliament that they should see the Laws against Conventicles put effectually in execution The Council as they might conveen the Contraveeners before themselves may commissionate the Inferiour Courts to proceed as their Delegats and upon their Decreets given by them as their Delegats that they may direct Letters of Horning Thesaurer-depute Reporter D. 407. Ker contra Hunter 20 December 1676. A Personal Action was sustained upon a Right of Annualrent against the Tennents during their Possession for the Mails and Duties effeirand to the said Annualrent Thesaurer-depute Reporter Mr. Thomas Hay Clerk D. 408. Carnegie of Balmachie contra Durham of Anachie eod die THE Lords Found That albeit by the common Law Annualrent be due for Tocher yet by Our Custom it is not payable unless it be so provided by the Bond or Contract for the same but in the case in question They Found the Defender lyable to pay Annualrent in respect the Debitor had been in use of payment at the least had promised to pay Annualrent for certain years bygone and Annualrent once payed implyes a tacite Paction to continue the payment of the same Thesaurer-depute Reporter _____ Clerk D. 409. Veitch contra Pallat. eod die THE Lords Found That a Rebel contracting Debt after Rebellion cannot assign in satisfaction of the same any debt due to him and tho the Assigney should transact with the Debitor of the Debt assigned before a Gift and Declarator the Donator will be preferable Lockheart and Hog for Veitch alteri Cuningham and Seaton Gibson Clerk In praesentia D. 410. Inter eosdem eod die AND in the same Case It was Found That a Bond granted after Horning tho it did bear that the same was for Wines yet being the Rebels assertion could not prejudge the King but it being alledged and offered to be proven that the said Wines were truely furnished before the Rebellion The Lords Found the Alledgance relevant to be proven only by the Rebels Compt Books and by Books of Entry and not simply by Witnesses without such Adminicles in Write D. 411. Pallat contra Veitch eod die THE Lords likeways Found That the Presumption introduced by the Act of Parliament that Gifts of Escheat are simulate in respect that the Rebel is suffered to possess is only in that case where the Rebel has a Visible and Considerable Estate of Lands or Tacks and is in possession of the same but when the Rebells Estate is either not considerable consisting only of an Aiker or two which was the case in question or in nominibus and not known to the Donator so that the Donator had reason not to trouble himself and to look after either that which was inconsiderable or which was not known to him there is no ground to presume that the Gift is simulate D. 412. Tait contra Walker 22. December 1676. THE Children of a second Marriage having pursued the Son of the first for Implement of their Mothers Contract of Marriage and the Provisions therein contained in their favours It was Alledged That they were Debitors themselves in swa far as they were Executors named and confirmed to their Father And It being Replyed That the Testament was given up by the Mother they being Infants for the time and she was not their Tutrix and so could not bind them The Lords Found That there was Difficulty in the case in respect the Pursuers were now past 40 years and they had never questioned or desired to be reponed against the said Confirmation And on the other part It was hard that a Deed of their Mother having no Authority to do the same as Tutor or Curator should bind them and there was no necessity to be reponed against the same it not being their Deed and being ipso Jure void and therefore before Answer the Lords thought sit to try if the Pursuers had meddled with any part of the Executry or had done any Deed that could import Homologation of the said Testament Newbyth Reporter D. 413. _____ contra _____ eod die IT was questioned amongst the Lords whether an Inhibition could be sustained albeit the Execution did not bear a Copy to have been affixt at the Mercat-cross And it was Resolved as to the future it should be declared that Executions of Inhibitions should be null unless Copies were affixt In
AN Assignation being granted for relief and payment of certain Sums mentioned in the Assignation for which the Assigney was Cautioner for the Cedent the same was questioned upon that head that it was never delivered but was still in the Cedents Hands The Lords Found That the said Assignation was never delivered And yet they Found That it was an effectual Evident in favours of the Assigney In respect the Cedent had made the same publick by a Horning thereupon Sir George Lockheart c. alteri Cuninghame c. In praesentia D. 443. Ker contra Kers 25 January 1677. A Disposition being questioned as being made in lecto at least delivered then It appeared by the Deposition of one of the Witnesses used for proving the Lybel that the said Write was subscribed diverse Years before the Disponer was on death-bed and that the same was delivered before death-bed to the said Witness and that the Defunct having called for it on death-bed for drawing two other Dispositions of the Lands contained therein one in favours of the Pursuer the Disponers Heir and the other in favours of a Son of the Disponer who was Father to the Person in whose favours the Disposition in question was made And upon debate amongst the Lords what should be the import of the said Testimony seing the Depositar did not declare in what Terms the same was given to him by the Disponer whether to the behoof of the said Person in whose favours it was made or not or upon any other account for keeping the same so that the Disponer might call for and alter it It was Found 1. That the Disponer might have revocked the same In respect it did not appear that it was delivered to the behoof of the Person to whom it was made This Decision seems to be hard in respect the Disposition was now in the Hands of the Receiver so that it was to be presumed that it was delivered either to him or to the said other Person to his behoof and the delivery ought to be construed and presumed to have been ut operetur and the nature of the Act it self imports that it should be to the behoof foresaid It not being to be imagined that if the Disponer had intended to have retained the Power in his Hands either to make the said Right effectual or not he would have given it out off his Hands 2. The Lords Found Upon the Testimony foresaid That the Disponer having revocked the said Disposition not simply but to the effect foresaid that the said two Dispositions should be granted The Pursuer therefore had not Right to the whole Lands contained in the said first Disposition but that the same should divide conform to the said two Dispositions Mr. Thomas Hay Clerk In praesentia D. 444. Procurator-Fiscal of Glasgow contra Cowan 26 January 1677. THE Commissar of Glasgow having sustained Process at the Instance of the Procurator-Fiscal for the tryal of a falsehood of Executions whereupon a Decreet had proceeded and having upon Probation of the falsehood decerned the user of the said Executions to pay 300. lib. to the Procurator-Fiscal as a Fine and the said Decreet being suspended The Lords Found That the Commissar was not competent Judge to the improbation of Executions by way of Action seing they cannot reduce their own Decreets and Improbation is a Reduction ex capite falsi Justice-Clerk Reporter Mr. Thomas Hay Clerk It is to be considered that the most part of Decreets befor Inferior Judges are for Null-Defence and upon false Executions and it were hard that there should be no Remedy but by Improbations before the Lords which may depend long and are very chargeable So that Decreets before Inferior Judges being for the most part for inconsiderable Sums the Remedy should be worse than the Mischief It appears indeed that the Commissars have not power to Fyne that being a Criminal Jurisdiction and that they are not Judges to Improbation by the indirect manner The Tryal of Falsehood by circumstances and presumptions being Altioris Indaginis and of that Difficulty that it ought not to be left to an Inferiour Judge Item The Tryal of Falsehood as to that effect that Falsaries may be punished ought not to be by any Inferior Judge But it seems to be just and necessary that Parties grieved by such Decreets should be allowed to pursue the obtainers of the same to hear and see them reponed against the said Decreets upon that Ground that they were not cited to the same to be proven by the Witnesses and Executer himself declaring that they pursue to that effect allanerly And it appears not to be inconsistent with Law and Form that this course should be taken seing the Judge does not reduce his own Decreet ex capite iniquitatis and it may be provided that such Pursutes tho they be upon the matter Improbations are only to the effect foresaid and that no other effect or consequence shall follow upon the same and multa fiunt per indirectum which cannot be directly And if a Party who is holden as confest should raise a lybel before an Inferior Judge that it may be Found that he was not Contumax being out of the Countrey or Sick or detained by Storm or some other insuperable Impediment and that therefore he should be reponed and the Decreet should be holden as a Lybel such a Pursute would not be incompetent tho in effect it would be a Reduction upon the matter D. 445. Donaldson contra Rinne 27 January 1677. IT was moved whether or not a Decreet of an Inferior Judge being questioned upon that Ground of Iniquity that the Lybel was not proven and the Depositions of the Witnesses being produced by the Pursuer ab initio The Lord of the Outer House may advise the Probation Or if it ought to be advised by the whole Lords It was Found That the Depositions being produced as said is the Lord may give his own Interloquitor as upon any other Write produced ab initio to instruct the Lybel Tho some of the Lords were of Opinion that the Probation ought to be considered and advised by the haill Lords And it was hard that the Probation being found sufficient by a competent Judge it should be in the power of one single Lord to review the same and find the contrare Mr. John Hay Clerk D. 446. Murray Pupil contra _____ 31. January 1677. A Pupil of 4. Years of Age being pursued upon the Passive Title of a Charge to enter Heir and the Friends conceiving that it were fit to Renounce none of them being Curators nor being willing to meddle and to authorize the Pupil to renounce The Lords Decerned but superceeded Personal Execution until the Pupil should be past Pupillarity Castlehil Reporter D. 447. Master of Rae contra Sinclar of Dumbaith 1. February 1677. SInclar of Dumbaith Sandside and others having in a Hostile manner invaded the Lord Raes Country There was a Criminal pursute intented against them for the
Crimes committed upon the occasion foresaid but the said pursute being taken away by a Remission there was thereafter a SpuilÈie pursued at the instance of the Master of Rae having Assignation from his Father and by his Tennents whose Goods had been Robbed and taken And it being Alledged against the said Pursute that it was prescrived The Lords sustained the Reply that the Prescription was interrupted by the foresaid Process before the Justices And again this Day a Summonds of SpuilÈie which had been formerly intented being produced and it being Alledged that by the said Summonds and Execution upon the same the Prescription was interrupted The Lords Found That the same did not interrupt In regard it appeared that the Names of the Defenders have been Blank in the saids Summonds and since filled up with another Ink And it appeared by the Executions that the same were at the instance of Gray of Arbo and others mentioned in the Summonds without specifying the said other Persons and the Defenders had settled with and satisfied Arbo So that it appeared that the Names of the said other persons had been filled up in the body of the Summonds of purpose to be a Ground for the said Reply But tho the Lords did not sustain the Process as to the effect of giving the Pursuer Juramentum in litem In regard the Goods Libelled were Libelled to extend as to the number of Good and the Damnage sustained by the Pursuers Cedent to vast Sums exceeding the value of that whole Country yet the Lords did adhere to their former Interloquitor That they would consider the time of the advising the profits of the Goods as in a SpuilÈie It occurred to some of the Lords and was moved whether Juramentum in litem being given to the Party wronged and upon that account that the quantities and the Kinds of Goods taken from him could not be so well known to others and proven if the same be a personal favour Or if it may be extended to an Assigney Newbyth Reporter D. 448. Holmes contra Marshall 2. February 1677. THE Lords Found That a Woman being provided by her Contract of Marriage to a Liferent of the Conquest of Lands or other Goods that should be acquired dureing the Marriage And the question being of Moveables and she having accepted a Third of the same she could not return to crave a Liferent of the other two parts tho it was Alledged by her she had not accepted the same in satisfaction of what she could claim 2. It was Found That a Woman being provided as said is to a Liferent of all the Moveables her Husband had the time he Marryed her and which he should acquire during the Marriage It was in her Option either to take her to her Liferent of the whole or to claim the 3d part in property but making Election could not varie Tho this was Found by plurality yet some of the Lords were of Opinion that by the Provision foresaid she has only a Liferent and that she had not the said Election Seing eo ipso that she is provided to a Liferent of all it is intended and agreed there should be no Communio bonorum It being inconsistent that she should be both Proprietar and Liferentar usufructu formali Newbyth Reporter Gibson Clerk D. 449. _____ contra Tait 6 February 1677. THE Lords Found That a Bond being granted on Death-bed with consent of his Appearand Heir for his Interest bearing an obligement to pay a Sum of Money Is to be considered not as a Legacy but as a Bond inter vivos Seing by the Common Law all persons are in legitima potestate as to the granting of Bonds And our custom whereby persons on Death-bed are not in in liege poustie is qualified with an exception viz. unless the Heir consent in whose favours the same is introduced Castlehill Reporter D. 450. _____ contra _____ eod die THE Lords Found That Appearand Heirs may be pursued as behaving before the year expire seing eo ipso that miscent adeunt passive And as to that pretence that they would be wronged if it should have appeared by the probation that they did not meddle It is of no weight Seing the Lords may modify Expences D. 451. _____ contra _____ 29. February 1677. AN Exhibition being pursued at the instance of an Heir of Conquest And it being Alledged by the Heir of Line that some of the Lands whereof the Writes were craved to be exhibited were in Holland and that by the custom there the Eldest Brother did not succeed as Heir of Conquest but all the Brothers and Sisters equally so that the Writes ought not to be delivered to the Pursuer who had only an Interest as to the fifth part whereas the Defender had four parts having acquired three from his Brothers and Sisters and having one himself and he having the far greater interest in the Land and Writes ought to have the keeping of the same being Lyable to make them forthcoming to the Pursuer The Lords notwithstanding preferred the Elder Brother to the keeping of the Writes In that same Cause It was Alledged That as to the Lands in Scotland the Defuncts Right was only by a Comprysing which was personal and whereupon no Infeftment had followed and which belonged to the Heir of Line as Tacks and Reversions The Lords nevertheless Found that the Heir of Conquest has Right to the same conform to a late Decision D. 452. Purveyance contra Knight 8 June 1677. THE Lords Found Upon the advising of a concluded Cause after Debate in praesentia in the Case in question That Liber Rationum and a Compt-Book of a Merchant containing an Article of Debt due by him to the Pursuer was a sufficient Probation In respect the said Compt-Book was written with the Merchants own Hand and he was known to be a person of great Honesty and Exactness and the Article was so clear that the time therein mentioned he stated himself to be Debitor in the said Sum all by gone Annualrents being payed and in an other part and Article of the said Book he did acknowledge that he had borrowed the said Sum and was special as to the time and there was a great Confidence and near Relation betwixt him and the Creditor and therefore the Lords decided as said is in respect of the said Circumstances but thought it hard that Compt-Books in Scotland where there is not that exactness that is else where in keeping Books should have that Faith that is given to them elsewhere Mr. Robert Stewart Actor alteri Cuningham Mr. John Hay Clerk In praesentia D. 453. Campbel contra Taite eod die THE Lybel being referred to the Defenders Oath and he having declared upon a general Interrogator that he was not owing the Sum acclaimed It was urged the time of the advising of the Oath that the Defender should declare whether or not he had gotten a parcel of Lint and what way he had payed the price of the