the same which Decisions can only make a Custom equivalent to Law 2dly Albeit where Wodsets were before the Inhibition the Debtor might accept Renunciation because by the Reversion the Wodsetter is obliged to grant Renunciation upon payment so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition could not be prejudged by the Inhibition as is found in all cases but here the Wodset was contracted after the Inhibition 3dly The Renunciation here granted was voluntarly accepted and payment was voluntarly made because there was a Clause of Premonition and Requisition in the Wodset which was not used It was answered that the Stile of Inhibitions is no Rule seing it prohibits the Selling of Goods and Geir to which no Inhibition is extended and there being no Law nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset the common Opinion and common Custom of the Nation to the contrair is sufficient neither is there any difference in the Custom whether the Wodset be contracted after the Inhibition or before and if there were there is much more reason that Wodsets contracted before should rather be subject to the Inhibition then Wodsets contracted after by which the Creditor Inhibiter is in no worse condition when they are Renunced then he was the time of his Inhibition neither was the payment here made voluntar albeit Requisition was not used because there being an obligement to pay the delay upon the Requisition being only for a few days no prudent Man would suffer himself to be charged upon the Requisition and it is no more voluntar then if a Creditor should pay before the Registration of his Bond because he could not be compelled before it were Registrat and he charged but seing Law and Custom obliged not Debtors to inquire for Inhibitions they may pay what way they please and albeit there had been a Requisition yea and a Consignation unless the Debtor after Inhibition had been obliged to call the Inhibiter it could operat nothing as to the Inhibiter It was answered that there would be a great Detriment to Creditors if they cannot affect Wodseâ—s by Inhibition seing these cannot be Arrested It was answered they might be Appryzed It was answered they might be Renunced before the Term of payment of the Creditors Debt so that Appryzing could not proceed and that a Debtors whole Estate may consist in a Wodset It was answered that that case could seldom occur and that there was neither Law nor Custom introduced upon that account The Lords found that the Inhibition could not operat against the Renunciation of the Woose and decided that general point by it self for clearing the I ieges and ordaiâ—ed the Parties to be heard upon some other Points in this particular Case as that payment of this Wodset was made after the parties was in mala fide after processe intented against him by Mr. John Eleis Hamiltoun contra Symintoun Eodem die DAvid Hamiltoun as Assigney by Robert Steel to a Bond granted by Andrew Symintoun pursues Grissel Symintoun as representing him for payment who alleadged absolvitor because the alleadged Bond is manifestly null in so far as on that side where the Subscriptions is there is only the Clause of Registration and all the rest is filled on the other side with another Hand and there is not one word on the Subscribed side of the Matter of the Bond that might have Connexion with the back-side which is unsubscribed so that this has been the last Sheet of a Writ taken off and filled upon the back upon which anything might have been filled up that the Pursuer pleased The pursuer answered that he oponed his Bond subscribed by VVitnesses which he byds by as a true Deed and is valide unless it were improven The Lords found this Writ null and yet declared that if the pursuer could adduce VVrits or Adminicles to astruct the same they would Examine the same ex officio as the VVriter and VVitnesses if they were alive The said pursuer did also insist against the Defender for her own Aliment as having Right thereto from his own Son who had Married her Mother It was alleadged for the Defender that her Mother Liferented her whole Estate and so by Act of parliament was obliged to Aliment the appearand Heir It was answered the Defender had Renunced to be Heir to the same Pursuer and so could not crave that Benefite It was answered that as Appearand Heir She had Right to the Aliment and her offering to Renunce was but to save her from personal Excution and it could not prejudge her of her Aliment which she had received before she Renunced Which the Lords found Relevant Lady Burgy contra Her Tennants and Sir John Strachan Iuly 18. 1667. THe Lady Burgy pursues the Tennants of her Liferent-lands to Remove Compearance is made for Sir Iohn Strachan who alleadges that he stands publickly Infeft in this Land and in Possession and will not suffer his Tennents to Remove It was replyed that the Pursuers Infeftment in Liferent is long before Sir Iohns and could take no effect till now that her Husband is dead It is answered that the Ladies Infeftment is base and therefore though it be prior to Sir Iohns publick Infeftment it cannot be preferred thereto unless it were alleadged it was cled with Possession before the publick Infeftment either by the Ladies own possession or at least by her Husbands possession but she cannot alleadge either because these parties were in possession from the Date of her Infeftment till the Date of this publick Infeftment It was answered for the Lady that she offered her to prove her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself or at least by these who derived Temporary or Redeemable Rights from him or his Authors as Liferents Wodsets and unexpired Comprysings It was answered that albeit favore Matrimonij the Husbands possession though common author be counted the Wifes possession yet the possession of a Wodsetter or Appryzer are neither said to be the Wifes possession nor the Husbands because they possess propâ—io jure and the Husband had only a Reversion The Lords found the alleadgeance Relevant for the Lady that her Husband possest after her Infeftment and before the publick Infeftment either by himself or by any deriving a Temporary Right from him or his Authors Executors of the Earl of Dirletoun contra Duke Hamiltoun Earl of Crawford and others Eodem die IN August 1645. the Earls of Crawford Lanerk and several other Noblemen and Gentlemen granted Bond to the Earl of Dirletoun bearing an Obligement therein Conjunctly and Severally to pay ten Merks for ilk Boll of 6000 Bolls of Victual that should be Delivered by Dirletoun to Iames Riddel or his Deputes the said Earl always obtaining Iames Riddels Receipt thereupon which Delivery and Receipt were to be betwixt and a blank day and the Receipt to be Delivered before
said is the Lords ordains the said Lord Caringtoun to be Exonered and Discharged of the saids Records and of his Trust in keeping of the same and ordain an Act of Exoneration to be extended thereupon in his Favours The Lords do ordain the Inventar of the Register Books to be set down in order in time coming and according to the several matters contained therein First of the Records of Parliament Secondly of the Records of Council Thirdly the Registers of Session and amongst them of Registrate Writs a-part of Decreets and Acts a-part and of Books of Sederunt Next to these the Registers of Exchequer Then the Registers of the Chancellory And thereafter the Registers of Seasins both the general Registers at Edinburgh and the special Registers of the Shires And in all to keep the order of time As for the Warrands of the Registers of Session since the year 1660. they are yet in the hands of the Clerks of Session And the former Warrands being in great Masses without any Order the Lords do appoint that the said Masses be sorted putting the Registrat Writs together and the Processes together and that the number of them both be taken and set down that thereafter they may be also digested according to the Order of time It is appointed that so soon as the Inventary shall be perfected it shall be insert in the Books of Sederunt ACT anent the manner of Booking Decreets of Registration November 21. 1676. THE Lords considering that where Registrations are persued by by way of Action it is and hath been the custom of the Clerks to keep in their hands the principal Writes decerned to be Registrate in the same manner as they do where Writs are Registrat upon the Parties consent Therefore the Lords ordain that these Decreets of Registration be Booked together with Bonds Contracts and other Writes which are Registrat upon the Parties consent according to the date thereof and that the Process be keeped with the Warrants of the Registrat Writes ACT anent the Registers of Seasins and Hornings in the several Shires Ianuary 4. 1677. THE Lords considering that by the Act of Parliament in Anno 1672. Concerning the Regulation of Judicatories the Keepers of the Registers of Hornings and Inhibitions and Seasins and Reversions in the several Shires are ordained to make exact Minut-books relating to these Registers in manner prescribed in that Act and the Sheriff Bailzie of the Regality or Royalty or their Deputs with two Justices of Peace if they be present are appointed at the times expressed in the said Act to take inspection of the saids Registers and the Minut-books relating thereto and after Collationing thereof to Subscribe the Minut-book under the Penalty of an hundred Pounds Scots for ilk Failzie in not meeting and comparing the saids Registers And the saids Lords to whom the care of seeing the Premisses done is committed by the said Act having by Missive Letters of the 31. of Iuly last direct to the several Sheriffs of this Kingdom required them by themselves or their Deputs to go about the performance of what is enjoyned to them by the foresaid Act and to return a satisfactory account of their diligence the first day of November thereafter now by-past certifying them if they failed they would be charged with Letters of Horning for the Penalties contained in the said Act and seeing the Sheriffs of the Shires after-mentioned and their Deputs viz. of Argile Renfrew Wigtoun Bute Peebles Selâ—irk Perth Kincardin Aberdene Nairn Sutherland Caithness Berwick â—orâ—ar and Inverness The Stewart of Kirkcudburgh and the Stewart of Orkney have not returned report to the saids Lords of their diligence in the Premisses therefore the Lords do ordain Letters of Horning to be direct against the saids Sheriffs and Stewarts and their Deputs Charging them to meet and to compare the Registers of Hornings Inhibitions Seasins and Reversions in their respective Shires with the Minut-books relating thereto and after Collationing of the same to Subscribe the Minut-books conform to the said Act of Parliament and to make report of their diligence therein to the saids Lords betwixt and the twenty day of February next and likewise Charging them to make payment to Sir William Sharp His Majesties Cash-keeper of the Penalties already incurred by them viz. an hundred Pounds Scots for ilk by-gone Failzie in not meeting and comparing the saids Registers at the times exprest in the said Act of Parliament and that within the space of fifteen dayes after the Charge as to such of the saids Sheriffs and their Deputs who reside upon this side of the River of Spey and upon twenty one dayes as to those who reside benorth Spey ACT concerning Arrestments February 1. 1677. THE Lords considering the great prejudice to Creditors and delay of Justice occasioned by Arrestments proceeding upon Decreets which are not ordinarly loused whereupon Debitors do procure delay of the Decreets at the instance of their Creditors against them before the same be extracted whereby lawful Creditors are hindered in recovering their jâ—st Debts until a several Process of double Poinding calling the Creditors and Arresters to dispute their Rights be raised and determined which if they should come in as distinct Processes by the course of the Roll would take a long time during which the principal Cause behoved to â—ist For remeid whereof the saids Lords do declare that they will receive all double Poindings for purging of Arrestments as incident Processes with the principal Cause without any new Inrolment and do further declare that if the Arrester proceed not in Diligence by an Action for making forthcoming whereby his Debitor may be Certiorat of the Arrestment and may raise double Poinding in the name of his Creditor in whose hands the Arrestment is made that they will grant no delay upon pretence of such Arrestments albeit upon Decreets But that the same shall be purged by Caution to be found by the Creditor to warrand the Debitor at the hands of the Arrester and that upon pretence of the Caution found they will not grant Suspension except upon Consignation after Distress by Decreet Likeas the saids Lords do declare that they will grant no Suspension upon Arrestments laid on after extracting of Decreets whether upon Decreets or Dependences but by way of double Poinding that thereupon both the Creditor and Arrester may be called ACT concerning Advocats Iune 7. 1677. THE Lords having called in the whole Advocats did intimate to them that whereas His Majesty had by a Letter of the 24. of May 1676. required the saids Lords to prevent and punish all Combinations and unwarrantable Correspondences amongst Advocats whereby they may forbear or refuse to Consult or Concur with these who did faithfully adhere to his Majestie 's Service and did continue in or early return to their Station Which Letter immediatly after receipt thereof was publickly read before the whole Advocats notwithstanding whereof some Advocats do refuse or forbear to meet with others of the
same Station and jointly Consult their Clients Causes which being contrair to the Custom always formerly observed and very inconvenient and prejudicial to the Leidges who are thereby put to Consult their Advocats severally and have not the benefit of their joint Advice as to the matter and manner of carrying on their Causes whereof the Lords have seen instances in their own presence by some Advocats their difiering and disclaiming the alleadgences proponed by others for the same Party For remeid whereof the Lords declare that if any Advocat in time coming upon the account of Personal prejudice or any other pretence shall reâ—use or forbear to Consult or Concur in the capacity of an Advocat with any others whom the Lords do or shall authorize to be Advocats that they shall be removed from their Imployments ACT concerning the sisting of Execution upon Bills of Suspension Iuly 3. 1677. THE which day the Lords considering that sometimes after Bills of Suspension are past the same are not exped at the Signet through the Parties fault in not finding Caution or other neglect and that Bills of Suspension are frequently by Deliverance of the Orpinary appointed to be seen by the Charger or his Procurators and in the mean time Execution stopped at the Chargers Instance indefinitly not limiting the same to a certain day And seeing some Question may arise if in these Cases Execution should be sisted and during what time For clearing whereof the Lords declare that where a Bill of Suspension is past and intimat or shown to the Charger or to the Messenger the time of the Execution but not expede at the Signet That Execution is only to sist for the space of fourteen dayes after the Date of the Deliverance passing the Bill unless the Ordinary upon further consideration by a Signature upon the Bill Subscribed by him discharge the expeding of the Bill untill a further day or allow the Suspender a longer time for expeding thereof providing the same exceed not a Month from the Date of the Deliverance of the Bill passing the same After elaâ—sing whereof of the Lords declare that the Charger may proceed to further Execution notwithstanding of the foresaid past Bill And if the Ordinary express no day but stop Execution indefinitly The Lords declare that the stop shall continue only for the space of fourteen dayes from the Date of the Deliverance as aforesaid but prejudice alwayes of Deliverances given by the Lords in presentia upon Petitions ordaining the Reasons of Suspension to be Discust summarly upon the Bill and in the mean time discharging execution In which case Execution is to sist untill the Cause be Discust or the Stop be taken off by the Lords And the saids Lords prohibite the Clerk of the Bills to write any Date upon the Deliverance of a Bill of Suspension but in presence of the Ordinary and that it be the true Date wherein the same is Subscribed ACT concerning the Suspensions of Protestations Iuly 10. 1677. THE Lords considering that the Act of Parliament doth appoint that where a Protestation is Suspended the Deliverance of the Bill should mention that it is the second Suspension and so forth of all the Suspensions obtained thereafter that the same is the third or fourth Suspension Yet notwithstanding by the Fault or Inadvertency of the Clerk of the Bills the same is not observed Therefore the Lords declare that where there is a Suspension past of a Protestation if the Deliverance of the Bill do not bear that the same is the second Suspension and so forth of any subsequent Suspensions that they will recal the Suspension albeit the same be exped at the Signet as being contrair to the Act of Parliament ACT against Sollicitations November 6. 1677. THE Lords taking to their serious consideration that by several Acts of Sederunt The Lords have formerly prohibited all Sollicitations in Causes depending before them whereby Parties did endeavour and expect favour by the Credit and Moyon of themselves or their friends interposing with the Lords and Personal respects not relating to the Cause to the great discouragement of others who had not the like friendship or moyon and to the great trouble of all conceiving it their interest and that it might be looked on as a slight or neglect if they did not upon all occasions by themselves or their friends Sollicit the whole Lords at their Houses lying scattered through the several places of the City imagining thereby to have much promoted their interest and payed respect to the Lords who have no regard to but are troubled with such Sollicitations it being their duty and design to do Justice to all impartially without respect of Persons Notwithstanding of which Acts and endeavours of the Lords against Sollicitations the same have been revived upon pretence of giving Information in the Cause but now seing written Informations are become ordinary and that all that ought to be represented to the Lords in any Case may easily without trouble be done by written Informations sent to the Lords by a servant which they will heartily accept and will not fail to peruse and finding it unfeasible to hinder Sollicitations so long as they admit of Verbal Information Therefore the Lords do declare that they will admit of no Sollicitation or Verbal Information in any Cause depending or that shall depend before them during the Dependence thereof either by the Parties themselves or by any other Person And to the end the same may be effectual against all importunity The saids Lords do Enact and Declare That it shall be a relevant Reason of Declinator against any of the saids Lords Ordinary or Extraordinary that they have received or heard any Sollicitation or Verbal Information in the Cause during the Dependence thereof But upon the first observing that the matter offered to be spoken to them did bear or import any Sollicitation or Verbal Information in a Cause depending if they did not use all the means they could to stop or withdraw to hear any further thereof Or in case any Sollicitation or Information in a Cause depending be offered by a Missive-letter if they do not present the same to the Lords Likeas the saids Lords do strictly Prohibite all Advocats Clerks Writers and others depending upon the Colledge of Justice or their Servants to offer to any of the Lords any Sollicitation or Information by Word or Letter but only by Written Informations Bills or Tickets for calling under the pain of Deprivation and being secluded from the House excepting the Clerk of the Process for clearing any Interlocutor or Minute in the Cause Likeas the saids Lords do declare That if any Party or others of the Leidges offer any Sollicitation or Information by Word or Missive that they will Ammerciat them as follows viz. Every Nobleman in three hundred merks Scots Money Every Baron or Knight in two hundred merks Every other Heretor Gentleman or Chief Burgesse in one hundred Pounds And every other Person in one
also produced three Contracts betwixt umquhil Lambertoun and Kennedy at Striveling upon the ninth of August 1651. by the last of them Kennedy was oblieged to deliver Lambertoun the Bonds for such several Sums he obtaining the Lady Levins consent of all these the Writer and Witnesses were dead and the Date proven to be false In this Process the Lords having considered all the indirect Articles of the Improbation in respect that these Writs in question were never in the alleadged Creditors hands and that there was not one Witness that did Depone that either they remembred to have Subscribed any of these Writs themselves or that they saw either the Parties or any other of the Witnesses Subscribe or any thing communed done or acknowledged by either Party contained in the Writs and that the Subscription of Watson one of the Witnesses in all the Bonds was by comparison with other contraverse Writs about the same time altogether unlike his Subscription and that the Word Witnesses adjoyned to the Subscription of all the VVitnesses did appear to be so like as written with one hand They found sufficient ground to Improve the foresaids writs besides many pregnant presumptions from Kennedies inclination and carriage which being extrinsick were accounted of less value and yet the astructions aforesaid and presumptions on that part were so strong that several of the Lords were unclear simply to find the Bonds false but not authentick probative writs VVilliam VVachope contra Laird of Niddrie Iuly 15. 1662. THe said VVilliam VVachope pursues Niddrie his Brother to pay him eleven pound Sterling for many years which he promised to pay him by a missive Letter produced bearing a Postscript of that nature The Defender alleadged absolvitor First because the Postscript is not Subscribed and so no sufficient Instrument to prove Secondly there is no ground for eleven pound Sterling yearly therein because the words are I have sent you five pound ten shillings Sterling now and I have sent you five pound ten shillings Sterling at VVhitsonday and you shall have as much as long as you live if you carry your self as ye do now which words as long as ye live cannot be understood Termly but yearly nor can relate to both the five pound ten shillings Sterling but only the last to which is adjected Donations being of strick Interpretations Thirdly The words foresaid cannot import a Promise but only a Declaration of the Defenders resolution to continue the same free kindness to his Brother which resolution he may recal at any time Fourthly The Promise is conditional quamdiu se bene gesserit wherefore the Defender can be the only Interpreter and declares that since his Brother hath not carried himself so well the meaning of such words being only this If so long as in my opinion you carry your self so and not according to the opinion of any other The Pursuer to the first Defense opponed the Letter which is holograph and albeit the Postscript be after the Subscription yet seeing it can have no other construction then to be done as a part of the Letter and not as other unsubscribed Papers whereanent it is presumed the VVriter changed his mind and left them imperfect and unsubscribed which cannot be here seeing the Letter was sent To the second he opponed the terms of the Letterâ— To the third alleadged omne verbum de ore fideli cadit in debitum and by these words can be understood nothing else but a Promise which is ordinarly made in such terms The Lords found not the first Defense Relevant per se but found the remnant Defenses Relevant and assoilzied VVilliam Swintoun contra Iuly 18. 1662. THe said VVilliam Swintoun having used Inhibition against at the Cross where he lived she falls Heir thereafter to another Person and immediatly Dispones that Persons Lands whereupon William raised Reduction of that Right ex capite inhibitionis The Defender alleadged absolvitor because the Lands Dâ—poned ly not within the Shire where the Inhibition was used Therefore replyed the Land fell to the Inhibit Person after the Inhibition and the Pursuer did all he was oblieged to do or could do till that time which if it was not sufficient Creditors will be at a great loss as to Lands acquired or succeeded in alter Inhibitions The Lords found the Defense Relevant that the Inhibition could not extend to Lands in other Shires bâ—falling to the Inhibit after quocunque titulo but that the Pursuer ought to have Inhibit de novo or published and Registrat in that Shire seeing all Parties count themselves secure if no Inhibitions be Registrat in the Shire where the Lands ly without inquiring further Lord Frazer contra Laird of Phillorth Eodem die THe Lord Frazer pursues Declarator of Property of the Barony of Cairnbuilg against the Laird of Phillorth as being Infeft as Heir to his Father who was Infeft as heir to his Grand-father who was Infeft upon the Resignation of Frazer of Doors and also upon the Resignation of the Laird of Pitsligo who was Infeft upon an Appryzing led against Doors and also as being Infeft upon an Appryzing at the instance of one Henderson led against Doors and declared that he insisted primo loco upon the two first Rights flowing from Doors and Pitsligo The Defender alleadged Absolvitor because the Defender in an Improbation against the Pursuer and his Father obtained Certification against Doors Seasine so that it being now improven all the Rights Libelled on falls in consequentiam because Doors is the common Author to them all and if he had no real Right all their Rights are a non habente potestatem so that now the Pursuer has no more in his Person but a Disposition made by Phillorth's Grand-father to Doors and a Charter following thereupon and is in the same case as if Doors upon that ground were craving declarator of Property which he could not do nor would the Lords sustain it albeit there were no Defender because that can be no Right of Property where there is no Seasine The Pursuer answered 1. That the Defense is no ways Relevant nor is the Pursuer in the case of a Declarator upon a Disposition or Charter without a Seasine because he produces a progress of Infeftments and is not oblieged hoc ordine to Dispute Doors his Authors Rights as being a non habente potestatem which is only competent by way of Reduction some representing Doors his Author being called 2ly The Defense is no way competent to this Defender unless he alleadge upon a better Right then the Pursuers for the Pursuer hath done all that is requisit to instruct his Declarator by production of his Infeftments and his authors Rights are presumed and need not be instructed and albeit the Defender be called yet he cannot quarrel the Pursuers Authors Right or hinder his Declarator unless he alleadge upon a more valide Right in his own Person 3ly The Defense ought to be Repelled as proponed by this Defender
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ— were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ— Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâ—ramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâ—ermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
to be Creditor in the same Clause The Lords found the conception of the Clause that the Brother by falling now Heir was excluded seing it was clear by the meaning of the Defunct that his Heir should have his Lands and his Bairns of his second Marriage should have though but one 4000 merks but here the Heir of the first Marriage was never served Heir They also found that the Portions of the Children being to an uncertain day and not conceived to their Heirs or Assigneys that they dying before that day had no right to the Stock but only the Annualrent medio tempore so that the Stock accresced to the surviving Children as if the Defuncts had never existed and that their Assigneys or Creditors could not have affected the same and so found the Brother had no right as nearest of Kin to the two deceasing Children not attaining the Age mentioned in the Contract William Stewart contra Stewarts Ianuary 18. 1665. WIlliam Stewart pursues a Poynding of the Ground of the Lands of Errol upon an Infeftment of Annualrent granted to his Grand-Father by the Earl of Errol by his Bond and Infeftment following thereupon in which Bond there were Cautioners the Annualrent was for a Sum of 7000 merk and a Sum of 8000 merk Compearance is made for the Pursuers Brothers and Sisters who alleadged that as to the Sum of 7000 merks it became moveable and belongs to them as nearest of Kine In so far as their Father made Requisition for the same It was answered the Instrument of Requisition is null and being disconform to the Clause of Requisition in respect that the Original Bond was to the Husband and Wife the longest liver of them two in Conjunctfee and their Heirs c. And the Requisition bears expresly That if the Husband or his Heirs required with consent of the Wife then the Debitor shall pay ita est the Instrumenet bears no consent It was answered that albeit some Points of the Requisition were omitted yet seing the mind of the Defunct appears to take himself to his Personal Right and consequenly to prefer his Executor to his Heir it is sufficient The Pursuer answered non relevat because every Intimation of the Defuncts Intention is not enough but it must be haili modo and the ground whereupon the Sums become moveable is because the Requisition looses and takes away the Infeftment and therefore if the Requisition be null the Infeftment is valid and he Bairns can never have access The Lords found the Requisition null and preferred the Heir Stewart contra Stewart Ianuary 19. 1665. IN the foresaid Cause it was further alleadged for the 8000 merk that it was also moveable because as to it there was no Liferenter and the Fear himself did require It was answered for the Children that the Requisition is null because it mentions not the production of a Procuratory nor the production of the Right it self 2ly The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul whereas he was Cautioner for the Earl of Errol granter of the first Bond. It was replyed oppones the Requisition bearing That the Procurators power was sufficiently known to the Notar 2ly non Relevat unless the Person required had called for the Procuratory or Right and had been refused 3ly The Procuratory is now produced with the Right and the Defunct acknowledged the Procuratory and Right because he raised horning thereupon The Lords sustained the Requisition and found the Sum moveable and preferred the Bairns thereto Shaw contra Lewens Eodem die WIlliam Shaw being a Factor at London and dieing there and having Means both in England and Scotland There falls a Competition betwixt his Executors nuncupative in England and his nearest of Kine Executors in Scotland Anna Lewens Executrix confirmed in England produces a Sentence of the Court of Probat of wills in England bearing That upon the Examination of Witnesses that Court found that William Shaw did nominat Anna Lewens his Executrix and universal Legatrix And that being asked by her what he would leave to his friends in Scotland He declared he would leave her all and them nothing because they had dealt unnaturally with him It was alleadged for the Defuncts Cusigns Executors Confirmed in Scotland that they ought to be preferred because as to the Defuncts Means and Moveables in Scotland the same must be regulat according to the Law in Scotland where a nuncupative Testament hath no use at all and albeit a Legacy may be left by word yet it cannot exceed a 100 lib. Scots It was answered that as to the Succession the Law of Scotland must regulat so that what is Heretable cannot be left by Testament though made out of Scotland As was found in the Case of the Successors of Col Henderson dying in Holland and in the Case of contra Meldrum yet as to the Solemnity of Acts to the Law and Custom of the Place where such Acts are done takes place as where an Act is done in Scotland albeit it be only probable by Writ or Oath of Parties yet being done in England it is probable by Witnesses though it were of the greatest moment and though the Law of Scotland in Writs of Importance requires the Subscription of the Partie before Witnesses or of two Nottars and four Witnesses yet Writs made in France and Holland by the Instrument of one Nottar are valid so here there being no difference from the Law of Scotland which always preferres Executors nominat before nearest of Kin and the difference only as to the Solemnities and manner of Probation that there it may be proven by Witnesses there was a Nomination and here only by Writ The Lords having considered the Reasons and former Decisions preferred the Executors confirmed in Scotland for they found that the Question was not here of the manner of Probation of a Nomination In which case they would have followed the Law of the Place but it was upon the Constitution of the essentialls of a Right viz. A nomination which albeit it were certainly known to have been by word yea if it were offered to be proven by the nearest of Kin that they were Witnesses thereto yet the Solemnitie of writ not being interposed the Nomination is in it self defective and null in substantialibus Lord Lour contra Ianuary 20. 1665. IN a Process for making arrested Sums furth-coming two Arresters viz. my Lord Lour and another Competing It was alleadged for Lour that the first Arrestment is null because the Partie was out off the Countrey when it was only made at his dwelling house which is not Legal seing all Summonds Intimations Premonitions Requisitions and all Denunciations against Parties out of the Countrey must be by Letters of Supplement from the Lords Execute at the Mercat Cross of Edinburgh and Peir and Shore of Leith So must Arrestments against these who are out of the Countrey be there Which the Lords found relevant and preferred the second Arrestment Personal
this Case is as favourable because the Reversion was only to the Father in his own life and therefore the Son endeavoured to hinder him to Redeem by taking Right to this Appryzing It was answered that the Case was not alike in a Conventional Reversion as in a legal And that the Appryzing led against the Father in his life would perpetuat the Reversion and that this Case was unfavourable where the Father intended to frustrate his Heir in favours of the Wife of the second Marriage to whom he had assigned the Reversion The Lords having upon the first report considered the favourableness of the Sons Case sustained the Defense but afterward upon Bill ordained them to be heard again in presentia and having heard them The Lords were of different opinions so that that came not to a Vot But the Lords before answer ordained the Wife to insist upon her Right who alleadged that she might Redeem ad hunc effectum to enjoy the benefit of her Liferent Right after her Husbands Death It was answered First That she wanted the concourse of her Husband 2ly That her Assignation was not intimat It was answered First Her Assignation was Registrat in the Register of Reversions conform to the Act of Parliament Which Registration being publicandi causa needed no intimation 2ly That she had a Disposition in Liferent by her Contract of the Lands which carried omnejus in the Disponer as to the Liferent Right during her Life and so carried the Reversion though not exprest and her Seasine being registrat it was equivalent to the Registration of the Assignation The Lords sustained the Wifes Interest and declared in her favours for her Liferent use and found the Disposition with the Seasine Registrat and the Assignation also Registrat sufficient Cheisly contra Cuthbert Eodem die CHeisly Charges Cuthbert for his Prentis-fee Who suspends and alleadges that he was set Prentise to him as Apothecary and that he deserted that Employment and became a Drogeist and thereupon the Suspender left him It was answered that the breeding of him as a Drogeist was sufficient and that he now practised as Apothecary and Cherurgeon The Lords found this answer not Relevant the Suspender being set to him as Apothecary to make Drogs and not as a Drogeisi that buyes Drogs as to the time after he changed But the Charger having further offered to prove that he constantly in his Chamber makes as well as sell Drogs the Lords found it Relevant Richard Cunninghame contra Duke of Hamiltoun Eodem die RIchard Cuninghame pursues the Duke and Dutches of Hamiltoun for payment of a Bond granted by the late Duke which being produced appeared to have been blank in the Sum Date and Creditors Name The Defenders alleadged the Bond was null as wanting the Designation of the Writer It was answered that they did now Design him which has been alwayes allowed by the Lords It was answered that though the Lords have done so ex officio Yet in a case of this nature where the Debt is so old never mentioned before and the Bond in the substantials blank in which case the Lords ought to keep by the express words in the Act of Parliament that such Writs are null and not to be supplyed by an equivalent The Lords Repelled the Defense and admitted the Designation Hellen Hill contra Maxwels Eodem die IN an accompt and reckoning between Hellen Hill Relict of Iohn Maxwel in Glasgow who was one of the Tutors named by Iohn to his Bairns and Mr. Robert and George Maxwels his brethren who succeeded the Daughters being dead Iohn by his Testament leaves his two Daughters and failing of either of them by Decease to the other his universal Legatars one of the Daughters dyed Pupil and the other shortly after her age of 12. years nominat the said Hellen her Mother universal Legatrix whereby Hellen craved the universal Legacy of both the Daughters It was alleadged that the last Daughter not having Confirmed her self Executrix to the first the first share was never established in her Person and so could not be Transmitted by her Testament but belonged to the nearest of Kin of the first Daughter viz. The saids Maxwells It was answered That this being a Substitution of each of the two Daughters to other nominatim by the death of the one it accrest into the other ipso facto without Confirmation as in the case of Bonds of Provision payable to the Father and by Decease of him to such a Bairn named albeit the Father be Fiar and the Bairn but Heir substitute it needs not Confirmation but the Bairn may summarly charge or pursue The Lords found no need of Confirmation but that it did accresce to the second Daughter upon the death of the first and so was carried by the seconds Testament In this account Mr. Robert as Heir pursuing for the Heretable Bonds The Tutrix answered that she ought to have allowance of what was wared out upon repairing of the Tenement in Glasgow It was answered that she as Tutrix ex officio was oblieged to exhaust the Moveables first one Person being both Heir and Executor and not to exhaust the Heretable Bonds that bore Annualrent and to let the other lie unprofitable and now to apply it to her own use by her Legacy It was answered That it was employed upon the Heritage and so was profitable to the Heir only being employed upon the House and that by a Warrand the Heir being then under Tutors to repair it out of the first and readiest of the Defuncts Estate The Lords found that Article Relevant to be deduced out of the Heretable Estate Elizabeth Anderson contra Andrew Cunninghame December 7. 1665. ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson It was alleadged by the Husband that his Wifes share of the moveables was exhausted It was answered That he having confirmed his Wifes Testament and given up the Debts due by him therein and made Faith thereon he cannot now be admitted to adduce any other Debts especially being so recent before the Testament within three or four years It was answered that he had only made Faith upon the Inventar of the Goods belonging to him but not of the Debts due by him which were only given up to abaite the Quot and albeit it may be presumed that he knew and remembred his own Debt yet presumptio cediâ— veritati seing the Creditors now produce their Bond instructing the Debt and crave preference Which the Lords found Relevant vid. Iune 9. 1666. Katharin Smith and William Duncan contra Isobel Robertson Eodem die KAtharin Smith and William Duncan having apprized from Isobel Robertson and Iohn Wilson all Right they had to a Tenement under which fell the Liferent-right of Isobel Robertson his Wife jure mariti Pursues the said Isobel for payment of the Mails and Duties that she had uplifted and of a part of the Tenement that she dwelt in her self She alleadged first that her Husbands
certain-Lands upon the Renunciation of Barbara Nisbet insists upon that Member of the Summons against the Superiour Iohn Ker that he should receive and Infeft her who alleadged no Process unless the Pursuer show the Right of the former Vassal whose Heir had Renunced for the Pursuer can be in no better case then the appearand Heir who if she were craving to be Entred behoved to Instruct her Predecessors Right The Pursuer answered that her adjudication against the Defender as Superiour is in common form which hath been ever sustained upon good ground because a Creditor has no Interest to have his Debitors Rights when he is seeking adjudication which must be his Title to demand the Rights but the Superiour is obliged by Law to reserve the Adjudger without Instructing any Right further then the adjudication which hath been frequently so found in the case of Appryzers The Lords having considered the case and paralel with that of Appryzers found this difference that Superiours got a years Rent for receiving Appryzers but not of Adjudgers yet in respect of the common custom of these Summons they â—epelled the defence and Decerned the Superiour to receive the Pursuer salvo jure â—ujuslibet suo Dam Geibs Moncreiff contra Tennents of Neutoun and William Yeoman Eodem die DAm Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tennents for a third part of the Duties who having Deponed that they payed so much for Stock and Teind joyntly for Yeards Parks and the whole Lands possest by them Compeared William Yeoman as now having Right to the Fee who alleadged no Terce of the Teinds because they fell not under Terce 2ly No Terce of the yeards because as the Mannor-place belonged to the Fiar without division so behoved the closs Gairdens Orchards yards c. The Lords found the Pursuer to have no Right to the Teind by her Terce unless there had been an Infeftment of the Teinds by Erection and therefore laid by the fourth part for the Teind and found that the years in question being possest by the Tennents and there being nothing alleadged nor instructed that there was a Tower Fortalice or Mannor-place having a Garden or Orchard for pleasure rather then profite they found no necessity to decide what Interest a Tercer would have in such but these being set by appearance as Grass Yeards they Repelled the alleadgeance Earl Tullibardine contra Murray of Ocâ—tertyre Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine against Murray of Ochtertyre Dispute the first of â—ebruary last It was now further alleadged for Ochertyre that Clauses Irritant in Wodsets not being illegal or null by our Law albeit the Lords do sometimes Restrict the Effect thereof ad bonum aequum to the just Interest of the Parties against whom the same is conceived they do never proceed any furâ—her But here Ochertyre is content to make up to the Earl his just Interest by paying a greater price for the Land then Sir Iohn Drummond and whereas it was alleadged that this was not receivable now after the Earl had made bargain with Sir Iohn Drummond Ochetyre now offered to prove that before any Bargain was agreed in Word or Writ he did make offer to the Earl of fourscore ten thousand merks which he offered to prove by Witnesses above all exception who communed betwixt them viz. the Lord â—tormount and the Laird of Kylar It was answered that the Pursuers adhered to the Lords former Interlocutor whereby they have restored the Earl against the Clause irritant he satisfying Ochtertyre his whole Interest cum omni causae the same Point being then alleadged and Dispute aâ—d both Parties being judicially called and having declared their minds concerning any such offer whereby the Earl upon his hoâ—our declared that before the agreement with Sir Iohn Drummond Ochtertyre offered not so much by 4000 merks 2ly Any such alleadgence albeit it were competent it were only probable sâ—ripto vel juramento the Earl now having Disponed to Sir Iohn Drummond so that the Effect would be to draw him into double Dispositions which is of great consequence both as to his Honour and Interest especially seing that Ochtertyre did not take an Instrument upon the Offer It was answered for Ochtertyre that the former Interlocutor cannot exclude him especially seing he did only then alleadge that he made a general offer of as much for the Land as Sir Iohn Drummond would give therefore but now he offers to prove that he offered 90000 merks which is 2000 merks more then Sir John's price The Lords found that they would only restrict the Clause irritant to the Effect that the granter of the Wodset might suffer no detriment which they found to be Effectual if the Wodsetter offered as great or a greater sum then the other buyer before any Bargain agreed between them either in Word or Writ â—ut found it not probable by Witnesses but by Writ or the Earls Oath and found that a general offer was not sufficient unless it had Exprest a particuâ—ar sum Lord Iustice Clerk contra Rentoun of Lambertoun Feb. 13. 1667. THe Lord Rentoun Justice Clerk putsues Rentoun of Lambertoun as heir to his Father for Compt and Payment of his Rents Woods and Planting intrometted with by Lambertoun in the beginning of the troubles It was alleadged for the Defender absolvitor because by the Act of Indemnity the Leidges are secured as to all things done by any pretended Authority for the time Ita est The pursuer being sequestred the Defenders Father medled by Warrand from the Committee of Estates and made Compt to them as appears by his Compt producedâ— which is ballanced by the Committee 2ly The said accompt bears That Lambertoun made Faith that it was a true accompt nothing omitted in prejudice of the publick after which he could not be questioned either for any thing in the accompt or for any thing omitted and not charged The Pursuer answered that the Act of Indemnity contains an express exception of all Persons that medled with any publick Moneys and had not made Compt therefore that they should yet be comptable 2ly The accompt produced contains two accompts one in anno 1641 another in anno 1643. The first is not approven by the Committee but adjusted by three persons who were no members of the Committee and whose Warrand is not Instructed and the second compt is only approven wherein the Charge is a Rest in the Tennents hands of the former accompt and the Oath is only adjected to the second accompt which cannot Import that Lambertoun ommitted nothing in the first accompt but only that he ommitted nothing in the second and his Oath is only to the best of his knowledge and can import no more than the Oath of an Executor upon the Inventar which excludes not the Probation of super Intromission It was answered for the Defender that the second accompt being the rest of the first accompt the approbation
Deponed that the principal Inventar was produced by Hartrie on his Death-bed and shown to his Friends and by them Read and that the Subscribed Copy was Collationed with the principal by them that Subscribed the same and held in all points and that the principal Inventar was all written with Hartries own Hand except an alteration made upon a Bond of Tarbets which was written by Iohn Ramsay's Hand by direction of Hartrie some hours before he Died and was not able to Subscribe it with some other alterations in relation to Bonds wherein the Children Substitute were Dead but that this Article in relation to Whiteheads Bond was all written with Hartries own Hand The Lords found the Tenor proven conform to the Subscribed Copy and found the said Inventar Holograph except in relation to Tarbets Bond and these other particulars written by Iohn Ramsay's Hand so that Holograph was proven without production of the principal Writ joyntly with the Tenor albeit some part of the Writ was not Hartries Hand but written by Iohn Ramsay's Hand but these not being Subscribed by Hartrie were in the same case as if they had been omitted forth of the Inventar and the remainder of the Inventar which only was Probative was all Holograph Patrick Park contra Nicol Sommervel November 12 1668. PAtrick Park pursues a Reduction of a Bond of 1200. Merks Scots upon these Reasons First Because albeit the Bond bears borrowed Money and be in the Name of Nicol Sommervel yet he offers to prove by Nicols Oath that when he received the Bond it was blank in the Creditors Name and offers to prove by Witnesses that the true Cause thereof was that Sommervel Nicols Brother having win all the Pursuers Money he had at the Cards he being then distempered with Drink caused him Subscribe a blank Bond for filling up what Sum he should win from him and that this Sum was filled up in this Bond which he offers to prove by the Oath of Nicols Brother that wan the Money and the other Witnesses insert so that the Clause of the Bond being played Money by the Act of Parliament 1621. the Winner can have no more but 100. Merks thereof 2dly Before Nicols Name was filled up or any Diligence or Intimation thereof there was a Decreet Arbitral betwixt the Winner and the Pursuer wherein all Sums were Dischargedâ— which Discharge being by the Câ—dent to whom the Bond was Delivered before the filling up of Nicols Name or Intimation thereof which is in effect an Assignation excludes the Assigney It was answered for the Defender that he opponed the Bond bearing borrowed Money grantled in his own Name and though he should acknowledge that the Bond was blank in the Name and that thereby his Name being filed up he is in effect and Assigney yet the Bond being his Writ the Bond cannot be taken away but by Writ or Oath of Party and not by his Cedents Oath or Witnesses insert unless it were to the Cedents behove or without a Cause Onerous as the Lords have found by their Interlocutor already 3dly Albeit it were acknowledged to be played Money the Act of Parliament is in Desuetude and it is now frequent by Persons of all quality to play and to pay a greater Sum then 100. Merks 4thly The Pursuer who loseth the Money hath no Interest by the Act of Parliament because thereby he is appointed to pay the Money but the superplus Money more then 100. Merks is appointed to belong to the poor and the Defender shall answer the poor whenever they shall pursue but it is jus tertij to the loser who cannot detain the Money thereupon but whatever was the cause the Defender having received the Bond for a Cause Onerous and being ignorant that it was for any other Cause but true borrowed Money he must be in tâ—to otherwise upon this pretence any Bond may be suspected and the Cedent after he is Denuded by Witnesses may take the same away The Lord Advocat did also appear for the Poor and claimed the superplus of the Money more then 100. Merks and alleadged that the Act of Parliament did induce a vitium reale which follows the Sum to all singular Successors and that though ordinarly the Cedents Oath or Witnesses be not taken against Writ yet where there is Fraud Force or Fault Witnesses are alwayes Receiveable ex officio at least and ought to be in this Case where there is such Evidence of Fraud that it is acknowledged the Bond was blank in the Creditors Name when Nicol Received it and the filling up was betwixt two Brethren and the Debitor dwelling in Town did not ask him what was the Cause of the Bond and that an Act of Parliament cannot fall in desuetude by a contrait voluntar Custom never allowed by the Lords but being vitious against so good and so publick a Law The Lords found the Act of Parliament to stand in vigour and that the Loser was lyable upon the same grounds and therefore ordained the Sum to be Consigned in the Clerks Hands and before answer to whom the Sum should be given up ordained Nicols Oath to be taken when his Name was filled up and for what Cause Margaret Calderwood contra Ianet Schaw November 14. 1668. MArgaret Calderwood pursues Ianet Schaw to pay a Bond as Heir to Iohn Schaw granted by him who alleadged Absolvitor because the Bond is null wanting Witnesses the Pursuer offered him to prove Holograph The Defender answered that Holograph could not prove its own Date so that it is presumed the Bond was granted on Death-bed unlesse 〈◊〉 be proven that the Date is true as it stands or at least that it was Subscribed before the Defuncts Sickness The Pursuer answered that Holograph proves its Date except contra tertium but it is good against the granter or his Heir who cannot be heard to say that his Predecessorsâ— Deed is false in the Date The Defender answered that an Heir might very well deny the Date of a Holograph Writ otherwise the whole benefit of the Law in favours of Heirs not to be prejudged by Deeds on Death-bed may be evacuat by Antedated Holograph Writson Death-bed The Pursuer answered that he was willing to sustain the Reason founded on Death-bed which was only competent by Reduction and not by exception or reply The Defender answered that where Death-bâ—d is instantly verified by presumption of Law and that the Pursuer must make up a Write in rigore juris null for want of Witnesses he ought without multiplication of Processes both to prove the Bond Holograph and of a Date anterior to the Defuncts Sickness Which the Lords found Relevant William Duncan contra the Town of Arbroth November 17. 1668. WIlliam Duncan Skipper in Dundee having lent the Town of Arbroth three Cannon in Iune 1651. to be made use of for the Defence of their Town against the English got from the Magistrats of Arbroth a Bond of this Tenor that they did acknowledge them to have
of Captain Barclay and that some of them were Subscribed no Witnesses being present but that he had bidden the Captain put in what Witnesses he pleased and that whereas before he had declared that he had Subscribed no Disposition yet he had done it being in the power of the Lady Towies Friends who told him that Captain Barclay being next Heir-male of Towie had a mind to take his Life which he found afterward not to be true and was willing to do any Deed for conveying of the Estate to the Captain seing he had no Heirs-male of his own The Clerks of Exchequer Advocats and several Writers and their Servants were also Examined upon Oath anent the having of the said Disposition and Bond The Clerks of Exchequer Deponed that the Disposition was produced in Exchequer and Resignation made thereon and the râ—st Deponed that they had seen the Disposition and Bond and were Consulted thereupon by the Captain but had given them back to him Upon the whole Matter the Pursuer craved that now seing there was sufficient Probation of the Forgery of the Writs and that the Lords had produced before them a just double of the Disposition presented to the Exchequer that therefore the Lords would proceed to improve the same and to declare that the same were false and Forged by the Captain and that they would remit him to the Justice General according to the ordinary Custom in Improbations It was answered for the Defender that the Lords could not proceed to improve the Writs because the Writs were not produced and never any Writ in Scotland was improven but when the principal Writ it self was produced neither can it otherwise be for Improbation before the Lords being ad effectum civilem to take away the Writ and Right therein the same behoved alwayes to proceed upon a particular and individual Writ which therefore behoved to be produced before the Lords and Witnesses for suppose it could be prove that a Write of such a date and such a Tenor was Fabricat and Forged at such a time and place which might inâ—er a Crime against the Forgers yet it could not take away all right by such a Writ because there might be several Writs of the same Date and the making up and improving of a false Writ of such a Date could not take away the true Writ of the same Date unless the principal Writ it self had been produced that the Judges and Witnesses might know that that was the very Writ in question And therefore our Custom hath settled and fixed upon this Remeid by allowing a Certification that if the Writs called for to be Improven were not produced they should be holden and repute as false and feinzied and should make no Faith but did not find them proven to be Forged and Feinzied but only to make no Faith as if they had been fenzied which in this Process has been done and the Lords have neither Law nor Custom to do any further 2dly Albeit the Witnesses have by their own Testimonies declared themselves to be Forgers of false Writs their Testimonies cannot prove that Captain Barclay was either Authour or accessory to their Forgery because they are socij criminis and have by their Testimony made themselves infamous as Falsers and so there is no Faith to be given to their Testimonies against any other but themselves Besides they have given partial Counsel to the Pursuer and have betrayed their Testimonies by voluntarly coming to them and declaring what they would Depone and therefore the Lords can neither Improve the Writs nor Remit Captain Barclay to the Justice as a Falser The Pursuer answered that albeit the ordinar Course in Improbations be only Certification when the Writs are not produced yet there is nothing to hinder the Lords to use extraordinary Remeids in extraordinary Cases and there can be no Case more extraordinar than this where there is an evident Tract of Forgery for taking away a considerable Estate of sixscore Chalders of Victual Improven by the very Witnesses insert and that the Writs have not been produced It is the Defenders own fault who knowing them to be false wilfully Abstracts the same and it will be a very great incouragement to Forgery if the Forger knew that all his hazard will be to suffer Certification if his Forgery take not Neither were ever Witnesses in Improbation of Writs exclude in the Civil Process as being socij criminis But if they acknowledge the Forgery thereof they were Improved though they themselves were accessory to the Forgery otherwise if Witnesses can be induced to Subscribe as Witnesses to a forged Subscription there were no possibility of Remeid seing it cannot be thought they would suffer any other to be present or that the Forger himself would consess The Lords refused to proceed to Improve the Writs not being produced or to Remit the Parties to the Justice But they did Declare that by the Processes they found Steil Ross and Ferguson the Witnesses to be guilty of Forgery by their own Confession and that they found Captain Barclay had made use of the VVrits acknowledged to have been Forged and therefore ordained these of their number that were upon the Privy Council to Represent the Case to the Council that they might cognosâ—e what furder Censure they saw just to be Inflicted and it was the privat opinion of most of the Lords that at least the Witnesses and Barclay himself should be banished But they found it not proper for them to express their opinion or prelimit the Council But withal the Lords found the Probation adduced sufficient to Declare Captain Barclay and the VVitnesses infamous and did Declare them such accordingly Iames Watson contra Agnes Simpson February 1. 1670. AGnes Simpson being Infeft by umquhil Alexander Stewart her Husband in Liferent in an Annualrent of 40. pound yearly out of the Lands of Laâ—ellethem she in Anno 1657. obtained a Decreet of Poinding of the Ground and the Tennents having Suspended on multiply Poinding calling her and James Watson and others wherein she is preferred in Anno 1666. to her Annualrent for all years bygone and in time coming In which 〈◊〉 of multiple Poinding Watson was absent Watson making use of the names of the Tennents does raise a second Suspension Anno 1668. wherein he is called on the one part and the said Agnes Simpson on the other part which now coming to be Discust it was alleadged for the said Iames Watson that the Decreet of multiple Poinding against him being in absence he ought now to be heard upon his Right which is a publick Infeftment long before the Liferenters base Infeftment or before it was cled with Possession It was answered that by the express Act of Parliament anent double Poindings It is Declared that where parties are called and compear not but intent Reduction of the Decreet that they shall never be heard against the Decreet or what the obtainer thereof has uplifted unlesâ— they shew a sufficient Cause
till they Redeemed all pestelor Compryzings December 5. 1665. Reg contra â—eg A Wodset containing a Clause of Reversion for granting a Tack for certain years after the Redemption was found not to be derogat from by the Act betwixt Debitor and Creditor but that it might be quarrelable by the Act 19. Parliament 1449. If the Tack were set but about the half of the true Rent as it was worth the time of granting the Wodsâ—t and so being Vsuâ—ary â— February 15. 1666. Lord Lâ—y contra Porteoâ—s Wodsetters having Wodset before the Act of Parliament 1661. were found comptable for the superâ—lus more than pays their Annualrent not from the date of the Act betwixt Debitor and Creditor but from the oâ—â—er made to give them security upon quiting their Wodsets and that notwithstanding there was in the Wodset a Clause Renuncing the Vsurpets Act suspending the payment of principal sums and ordaining Lands to be taken in satisfaction thereof and all Acts of that nature and albeit there be an exception in the said Act when the benefite of such Acts are Renunced which was not found to relate to the Clause anent Wodsets which is posterior to that exception February 21. 1666. Lord Borthwick contra his Wodseâ—ters Wodsetters before the Act 1661. choosing to retain the possession were found comptable for the superplus not from the Summons but from the date of the offer to find Caution which was admitted after the Citation but it was found that the Wodsetters were not bound to declare their option whether to quite the Wodset or restrict till Caution were offered February 12. 1666. Ogilbie contra A Wodsetter by his Wodset being obliged upon payment to Renunce and by his missive Letter acknowledging payment his Son and apparent Heir having received a disposition of his other Estate without a Cause onâ—rous after the Wodset but before the missive Letter was found lyable as lâ—crative Successor to enter to the Wodset Right and to Renunce Ianuary 15. 1668. Earl of Kinghorn contra Laird of Vdnâ—y A Wodsetter was found comptable for the superplus after oâ—â—er to find Caution though he had a posterior Ratification and â—ik after the Act 1661. Iune 19. 1669. Scot contra Langton A WRIT â—iz a Bill of Exchange by a Drover subâ—cribed only by a mark and another hand writing such a mans mark The Lords did not allow it as probative but before answer ordained the writer and witnesses to be examined ex officio February 26. 1662. Brown contra Iohnstoun of Clacharie A Writ was sustained though subscribed but by one Nottar being a Contract of Marrâ—age whereon Marriage followed Iuly 19. 1662. Breadiâ— contra Breadie and Murie A writ was found not to prove being the Act of a Town Council without Citation or Subscription of the party bearing consent to a penalty imposed upon unfree-men February 13. 1663. Town of Linliâ—hgâ—w contra unfree-men of Borrowstownness A writ was sustained though not delivered being in â—avours of the granters Son though a Bastard February 25. 1663. Aikâ—nhead contra Aikâ—nhead A writ wanting wâ—tnesses designed was not sustained simply on designation being a very old writ without other adminicâ—es to astruct seing the improbation by such witnesses being dead was not competent as in recenti Iuly 15. 1664. Colvil contra Executors of the Lord Colvil A writ viz. a Bond was found not taken away by witnesses offering to prove payment though the Bond was made in England to English-men where that probation is competent being made by Scots-men residing in Scotland and registrate here and so to be regulat by the Law of Scotland December 8. 1664. Scot contra Anderson and Neilson A writ was not found null as wanting Writer and Witnesses insert being made secundum consuetudinem locâ— in Ireland Feâ—uary 1. 1665. Elphing stoun of Sâ—lmes contra Lord Rollo A writ quarreâ—â—ed as null the witnesses not being designed was not sustained unless living witnesses were condescended on or adminicles to astruct the verity of the debt February 3. 1665. Falcoâ—er contra Earl of Kingâ—orn A writ alleadged null because the writer was not designed was sustained upon designing the â—riter albeit the writ was old and appeared to have been blank in the sum Creditor and Debitor Decem. 5. 1665. Cunninghame contra Duke of Hamiltoun A writ viz. a Bond was taken away by this manner of probation by oath that it was for a Prentice-see and by witnesses that the Prentice was put away within a year and an half after the entry as to a proportional part of the Prentice-see to the time thereafter Iune 15. 1665. Aikman contra A writ being no compt Book but some louse Scheduls was found not probable to instruct a debt against the writer of it who deponed that he wrot the same but declared also that he had payed the sum Iuly 1. 1665. Nasmith contra Bower A writ wanting witnesses being offered to be proven holograph albeit it cannot instruct its own date or that it was subscribed before the Defunct was on death-bed yet the alleadgance on death-bed was not sustained by way of exception or duply Ianuary 11. 1666. Seaâ—on and the Laird of Touch contra Dundaâ— A writ being an assignation to an appryzing was taken away partly by the assigneys oath and partly by witnesses ex officio proving that the appryzing with the assignation blank in the assigneys name was retired and lying by the assigneys father who was debitor in the sums and amongst his writs the time of his death February 27. 166â— Creditors of the Lord Gray contra Lord Gray A writ was not sustained as having but one witneâ—s to that subscription though another witness generally designed deponed he saw not that party subscribâ— but that the subscription was his hand-writ to the best of his knowledge and several other subscriptions were adduced to asâ—ruct the same comparatione lâ—terarum seing there were not two witnesses insert to this subscription Ianuary 4. 1667 Dow of Arâ—ho contra Caâ—pbel of Calder A writ being a discharge by a Master to his Tennents was sustained though without witnesses and not holograph and without necessity to prove the truth of the Subscription in respect of the common custom to take such discharges Iuly 4. 1667. Sâ—haw contra Tennents A writ being a bond was found not probative having only the clause of Registration and Subscription on the one side and all the rest on the other side with another hand unless it were astructed with other evidences and adminicles Iuly 16. 1667. Hamilâ—oun contra Symontoun A writ subscribed by Nottars was sound null because the Nottars subscription said that he subscribed for the party but bear not at his command which was not allowed to be astructed by the witnesses insert Iuly 26. 1667. Philip contra Cheap A writ being a Bond subscribed with initial Letters was sustained it being found proven the debitor was accustomed so to subscribe and there being three Witnesses and the Writer examined whether de facto he subscribed
the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâ—eat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâ—ary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. â—f March 1681. yearâ— at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ— the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâ—s June 22. 1665. Act anent Proâ—tutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
to the Lords concerning Prizes January 3. 1667. Warrand for general Letters for the Contribution due out of Benefices to the Lords November 17. 1668. Oaths to be taken for the price of Fowls January 15. 1669. Act anent Extracts of Registrate Writs bearing the Procurators names though not Subscribing December 9. 1670. Act anent Extracting Acts and Decreets Ianuary 20. 1671. Act against Magistrates of Burghs for letting Prisoners for debt go out of the Tolbooth Iune 14. 1671. His Majesties Order to the Commissioners of His Thesauray to free the Lords from the Cess July 19. 1671. Act for Keeping the Bars November 3. 1671. Act concerning priviledged Summons July 21. 1672. Act anent payment of Dues for Summons containing two Diets July 11. 1672. Act concerning Bankrupts January 23. 1673. Act Ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by three Lords in vacant time June 24. 1673. Letter anent Pryzes July 8. 1673. Act for Ordering new hearings in the Outer House July 11. 1673. Letter from His Majestie against appeals June 17. 1674. Act concerning Acts before Answer July 23. 1674. Act for Tryal of those presented to be Ordinary Lords of Session July the last 1674. Act upon the Marquess of Huntly's disowning Appeals January 26. 1675. Act concerning Prisoners for debt February 5. 1675. Act anent Bills of Suspension February 9. 1675. Act Ordaining Processes after Avisandum to be carryed to the Ordinary that same day and Reported in his Week June 2. 1675. Heugh Riddel sent to the Plantations July 20. 1675. Act anent passing of Bills for liberty out of Prison July 21. 1675. Act concerning the granting of Protections February 1. 1676. His Majesties Letter concerning the Clerks June 20 1676. Act concerning the Registers Iuly 4. 1676. Act for Inventaring the Registers Books July 13. 1676. Act anent the manner of Booking Decreets of Registration November 21. 1676. Act anent the Registers of Seasines and Hornings in the several Shires January 4. 1677. Act concerning Arrestments February 1. 1677. Act concerning Advocates June 7. 1677. Act concerning the sisting of Execution upon Bills of Suspension July 3. 1677. Act concerning the Suspensions of Protestations July 10. 1677. Act against Solicitations November 6. 1677. Act concerning Bills relating to concluded Causes November 9. 1677. Suspensions of the Excize to be past only in presentia December 6. 1677. Warrand anent Precepts for giving Seasine upon Retoures February 15. 1678. Act in favours of the Lord Register February 22. 1678. Act Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. Act prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords July 23. 1678. Act discharging Advocates and Writers Servants to Write their Masters Subscription July last 1678. Act Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers January 3. 1679. Orders for payment of the Dues of the Signet where Suspensions are appointed to be discust upon the Bill January 24. 1679. Act in favours of Intrant Advocats February 7. 1679. Act anent Executors Creditors November 14. 1679. Act anent the Registration of Hornings November 19. 1679. Act against Solicitations December 24. 1679. Act anent the taking of Renunciations from Persons Inhibited February 19. 1680. Act against Petitions for alteration of Acts Extracted February 24. 1680. His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session June 8. 1680. Act concerning Nottars July 29. 1680. Act concerning Bills of Suspension November 9. 1680. Act anent the marking of Advocates compearance for Defenders November 25. 1680. Act in Favours of the Macers February 15. 1681. Act anent Seasines and Reversions of Lands within Burgh February 22. 1681. THE ACTS OF SEDERUNT OF THE LORDS of SESSION Beginning the 5th Iune 1661 and ending in February 1681. ACT for Vniformity of Habit by the ordinary Lords Iune 5th 1661. THE Lords did find that the whole fifteen ordinary Lords of Session of whatsoever Place Dignity or Title they be should carry and use the ordinary Habit and Robes of the ordinary Lords of Session in all time coming ACT for continuing Summonds and writing in Latine as formerly Iune 6. 1661. THE Lords taking to their serious consideration of how dangerous consequence the alteration of Formes and Customes is They have therfore ordained and hereby ordain all Summonds which formerly abode Continuation and shall be insisted in before them to be continued in time coming and an Act to be made thereanent and Letters to be direct thereon as was in use to be done before the Year 1651 not exceeding the Rates and Prices formerly exacted And also considering that during the Power of the late Usurpers the use and custome of writing in Latine was then discharged by the pretended Commissioners for Administration of Justice Therefore the saids Lords ordain all Charters Seasings and other Writes of that nature alswell such as pass the Seals as other ways which were in use to be formed and written in Latine to be continued in the same Language as formerly before the Year 1652. And to the effect none may pretend Ignorance hereof ordains these Presents to be published at the Mercat Cross of Edinburgh after sound of Trumpet by a Macer ACT anent Warnings Iune 11th 1661. THE saids Lords ordain That all wakenings of Processes lying undiscust be execute upon 24 hours against all such Persons as are for the time within Edinburgh or Leith and upon 6 dayes against all other Parties within this Kingdom and upon fifteen dayes against all such Persons as are out of the Kingdom ACT for retaining the Principal Writes presented to the Register and giving forth only Extracts thereof THE which Day the Lords of Council and Session taking into their consideration That the custom of the Clerks in the Usurpers time of giving back to the Parties the Principal Bonds Contracts and other Writes given in to be registrat did tend to the hazard and prejudice of the Leidges and was contrary to the practise formerly observed They do therefore ordain that the Clerks of Session and all Clerks of Inferiour Courts and Judicatories shall henceforth keep and retain the Principal Writes for which they shall be answerable and give forth only Extracts thereof as formerly before the Year 1651. and ordains these Presents to be published at the Mercat Cross of Edinburgh Likeas the saids Lords require the Clerks of the Session to be careful in preserving and keeping all Principal Bonds Contracts and other Writes to be given in to them to be registrat and that they be countable for them and for their Servants so long as they shall give them trust thereof And that once in the two years they deliver them to be keeped by the Clerk of Register with the Publick Records of the Kingdom ACT for Protestation Money Iuly 4. 1661. THE said day the Lords taking to their
the said â—ine of three pounds Scots from any Person whom they shall find within the said Barr. And in case the Party refuse to pay the same that they carry them to Prison untill they make payment thereof Certifying the saids Macers that if upon delation of them by any of the Clerks they shall be found negligent in performing of what is hereby enjoyned to them they shall be fined in the said sum of three pounds Scots and imprisoned during the pleasure of the Lords And this Sentence to be inflicted upon the Macers or other transgressors of this Act as oft as they shall be found to contraveen the same ACT concerning Priviledged Summons Iuly 21. 1672. THE Lords considering that divers Summons as declarators and others which by the constant from and practice of this Kingdom did always abide 21. days warning have of laâ—e been execute sometimes upon six days as being priviledged by deliverance of the Lords upon Bills given in for that effect and seeing these Bills being dâ—awn and given in by Writers to the Signet do passe of Course without perusal or consideration thereof by the ordinary which hath given occasion to the foresaid abuse And finding it expedient that it be determined for the future what Summons shall be Priviledged Therefore the saids Lords do ordain That in time coming all Summons shal come in upon 21 days warning And that none be priviledged by the Lords deliverance or otherways except these following viz. Removings Recent-spulzie and Recent Ejections where the Summons is Execute within 15 days after the comitting of the deed intrusions and coming in the Vice Causes alimentary Exhibitions Summons for making arrested Goods forthcoming Transferrings Poyndings of the Ground Waknings Special Declarators Suspensions Preventoâ—s and Transumpts And that Recent-spulzies Ejections Intrusions and Succeeding in the Vice be execute upon 15 days and that all the rest of the foresaids Summons be Execute upon six days and that the second Citation be likewise upon six days And it is further declared That all the Summons above-mentioned shall be priviledged as a foresaid whither the Summons bear a priviledge or not And the Lords do hereby prohibit and discharge the Writers to the Signet to Write Form or Present to the Clerks to be put in any Bills for priviledging any Summons but these above-exprâ—st Certifying such as shall coutravâ—en that for the first fault they shall be fyned in one hundred merks Scots to be applyed for the use of the poor and for the second fault they shall be deprived of their Office It is always hereby declared that this Act is not to be extended to Summons execute against Persons Inhabitants of the Burgh of Edinburgh or the contiguous Suburbs thereof who may be Summoned by the second Citation upon 24 hours conform to the custom formerly observed ACT anent payment of dues for Summons containing two dyets Iuly 11. 1672. FOrasmuch as the Lords after mature dâ—liberation did think fit That the former custom of continuing Summons and taking out of Act and Letters thereupon in all such Causes and Processes as formerly did require and abide continuation should be laid aside in time coming And that in Place and Lieu thereof the Summons in all Process of the nature foresaid should contain two distinct warrands for citing the Defenders at two several times and to two several dyets and dayes of Compearance with the same Certification as before was usual and contained in the first and second Summons respective And that Procâ—ssâ—s should be granted in the Causes foresaids upon Summons containing the warrands above-mentioned and Execute conform to the same as formerly was granted upon Summons Act and Letters And upon an overture given in and approven by the Lords of Articles An Act of Parliament hath followed and is made to that purpose As the Act of Parliament intituled Act discharging second Summons at length proports And seing the Lords of Session when they had the said alteration of the former Custom under their consideration thought it no ways reasonable that thereby either His Majesties Secretary or the Clerk of Register or the ordinary Clerks of Session his Deputes should be prejudged of their dues and profits formerly belonging to them respective And in regard the Summonds which are to contain the said distinct warrands for Citation are in effect and upon the matter two several Summons and are equivalent to Summons Acts and Letter and have the same effect to all intents and the profits formerly arising from all Acts of Continuation and Letters thereupon are a considerable part of the Dues belonging to the Lord Secretare Lord Register and his Deputs for their Incouragement and Service in their respective Officesâ— and upon the considerations foresaid it was resolved That notwithstand ing the said alteration the same should be continued and secured to them in manner after mentioned Therefore and in order to their satisfaction The Lords of Session does Statute and Ordain That for the Signing of all Summons which formerly did abide continuation and in lieu thereof shall now and hereafter continue the said warrands for two several Citations the keepers of the Signet shall have and may take as much as formerly he might have taken both for Summons and Letters while the same were signeted a part As also it is hereby appointed That all the saids new Summons containing two distinct warrands for citing to the Defenders two dyets be subscribed by the Clerk of Register or in his absence by one of his Dâ—puts or the ordinary Clerks of Session who at the subscribing thereof are to receive for the same the dues formerly payed for Act and Letters And the Lords do hereby discharge the keeper of the Signet to affix the Signet to any of these new Summons for two or more Citations but such as shall be subscribed by the Clerk of Register or his Deputes as said is and that no Process be granted upon auy such Summons unlesse they be subscribed by them in manner foresaid ACT concerning Bankrupts Ianuary 23. 1673. FOrasmuch as by an Act of Sederunt of the 26 February 1669. It is Satute an Ordained that all Decreets of Bonorum in time coming should contain a Clause ordaining the Persons in whose favour the Bonorum should be granted To take on and weare the habit of Bankrupts Which is a Coat or upper Garment which is to cover the Parties Cloaths Body and Armes whereof the one half is to be of a Yellow and the other half of a Broun Colour and a Cape or Hood which they are to wear on their Heads Partie-coloured as said is which habit they are to take on before they come out of Prison and come out with it upon them And that it shall be lawful to the Creditors to seiz upon and imprison any of them who shall be found wanting the foresaid habit And the Lords considering that this Course for preventing and punishing of Bankrupts hath through the in-observance of the same proven
Which desire the Lords granted ACT concerning Prisoners for Debt February 5. 1675. THere being an Address made to the Lords of Council and Session by the Keeper of the Tolbooth of Edinburgh representing That Persons imprisoned in the said Tolbooth for Debt upon Captions having obtained discharge of the Debt are pressing to be liberat upon production of the discharge without a Charge to set at Liberty which he refuses to do alâ—â—it the same be usually done by the Keepers of other Tolbooths And particularly by the Jailor of the Tolbooth of the Canongate and therefore dâ—siring that the Lords would allow him the same priviledge which is assumed by the Jailor of the Tolbooth of the Canongate or otherways to determine what both of them ought to do herein And the saids Lords having taken the general Case to their consideration and finding that where the Debt for which Persons are Incarcerat is in-considerable the Expenses of procuring â— Charge to set at Liberty will sometimes near equal the Debt it self the Prisoners being also poor and not able to satisfie the saids Expenses Therefore the saids Lords do Authorize and allow the Magistrates of Burghs to set at Liberty out of their Tolbooths Persons imprisoned for Debt by vertue of Letters of Caption upon production of a sufficient discharge of the Debt granted by the Creditor at whose instance they are incarcerat bearing a Consent to the Debitors Liberation and duly registrat if the sum do not exceed two hundred merks Scots and the Prisoner be not arrested at the Instance of other Parties the Magistrats or Keeper of the Tolbooth being always careful to keep an Extract of the said discharge and finds no necessity in this Case of a Charge to set at Liberty But if the sum for which the Debitor is Incarcerat exceed two hundred merks Scots the Lords discharge the Magistrats of the Burgh to Liberat him out of Prison without a Suspension and Charge to set at liberty under His Majesties Signet February 9. 1675. ACT anent Bills of Suspension THE Lords finding it expedient That some setled Rule and Order be set down concerning the presenting and passing of Bills of Suspension That any abuses which of late have creept in may be prevented in time coming do ordain that hereafter in time of Session no Bill of Suspension shall be presented to any Lord to be past but to him who shall be ordinary Lord for the time upon the Bills and that both in time of Session and Vacancy the Ordinary shall continue upon the Bills from Tuesday to Tuesday in the inseuing week And ordain the Bills to be presented only by the Clerk of the Bills or his Servant and when the Bill of Suspension shall be presented if the Ordinary after the perusal thereof find the Reasons relevant and sufficiently instructed that he passe the Bill And in case application shall be made to him by the other Partie concerned for a hearing the Ordinary shall Writ towards the foot of the Bill that before the Bill of Suspension be expede and go to the Signet the other Partie shall see and answer and in that Case he may stop execution for sometime not exceeding a moneth from the time of presenting the Bill And if the Ordinary shall reâ—use the Bill of Suspension he shall mark upon the back of the Bill with his own hand that the Bill is refused in respect the Reasons are either not relevant or not instructed which Bill the Clerk is thereby ordered to keep and mark with his hand upon the back thereof what Writs are produced for instructing the Bill And if the same Bill or any new Bill of Suspension upon that matter shall be desired to be presented to another Lord being Ordinary for the time the Clerk shall present to the Ordinary the Bill of Suspension which was formely refused In which Case the Ordinary is not to passe the Bill untill it be presented to the whole Lords in time of Session or to three Lords met together in time of Vacancy ACT ordaining Processes after Avisandum to be carried to the Ordinary that same day and reported in his Week Iune 2. 1675 THE Lords considering the inconveniences arising from the giving up of Processes to Parties or their Advocats after the same are taken to Interlocutor the reporting of Causes being thereby much delayed and it being contrary to the ancient Custom Therefore the saids Lords ordain that in time coming after any Cause is dispute before the Ordinary in the Utter-house and an Avisandum made therein to the Lords that the Process shal that same day be carried by the Clerk or his Servants to the Ordinary that he may peruse the same and that he may endeavour to report to the Lords the points taken to Interlocutor the next day thereafter or at fardest once in his Week And the Lords discharge either the Ordinary or the Clerk to give up or lend out to the Parties or any Person for them the Processes or any part thereof after an Avisandum is made therein to the Lords or when the Ordinary shall call for the Process to consider it himself And if any Act or Decreet pronounced by the Ordinary shal be stopped upon the desire of any of the Parties for a new hearing that the Lord who formerly hard the Cause shall go to the Bench in the Utter-house betwixt 8. and 9. a clock in the morning before the ordinary come out and call and hear the Parties Procurators wherein the Lord was Ordinary the immediat preceeding Week shall have the preference before any other Lord who was Ordinary in any of the former Weeks Likeas the Lords discharge any writen Dispute upon Bills of Suspensions or Advocation but where the Ordinary upon the Bills shall think fit to allow a Bill to be seen that he call the Parties the next day and hear what they have to say viva voce without taking in written answers Hugh Riddel sent to the Plaâ—tations Iuly 20. 1675. THE which day anent the Petition given in to the Lords by Iohn Riddel Merchant in Edinburgh shewing that Heugh Riddel the Petitioners only Brother having committed an unexcusable Crime Whereat the Supplicant blushes in cutting some Silver-buttons off a Gentle-mans Cloaths in the Utter-house during the time that the Lords were sitting and being therefore committed to Prison the saids Lords have most justly ordered him this day to be brought by the publick Executioner from Prison to the great door of the Session House at 9. a clock in the forenoon and to stand till 10. a clock with a Paper on his Fore-head expresing the Crime whereof he is guilty and thereafter to be taken by the foresaid Executioner to the Trone and there to stand with that Paper on his forehead from ten to eleven a Clock Which Sentence the Supplicant acknowledgeth to be less then the said Hugh Riddel deserveth only he being a young man and related to honest Parents and the Supplicants Brother and never known to
hundred merks toties quoties to be applyed for the use of the Poor It is alwayes hereby declared That the Verbal Information of any Party or other Person for him when required or allowed Judicially or before Auditors in Diets appointed for both Parties to be heard or before the Ordinaries upon the Bills in relation to the passing of Bills of Suspension or Advocation or before any of the Lords to whom either by consent of Parties or by appointment or Recommendation of the Lords an Accommodation in any Process is referred is no wayes hereby Prohibited And to the effect the Leidges may be secured against any prejudice which they may apprehend by debarring them from Sollicitation or Verbal Information the Lords do declare that there shall be free access for all Persons to Inform them by Written Informations only to be delivered by Servants and that in all Cases from time to time and for the more sure delivery of Informations they ordain that every one of the Lords shall have a Servant attending in his House fromâ— five a Clock to eight a Clock at night who shall be holden to receive any Informations doubles of Bills or Tickets for Calling that shall be given in without payment of any Money under such pain or punishment as the Lords shall think fit And which Informations Bills or Tickets shall be delivered by the Servants of Advocats or of the Parties and by none others And Ordain this Act to be affixed on the Wall of the Outter-House And to be Printed that none may pretend ignorance thereof ACT concerning Bills relating to concluded Causes November 9. 1677. THE Lords considering that sometimes after concluded Causes are Advised and Sentences pronounced therein Parties endeavour to delay the Extracting thereof for a considerable time and then do offer Petitions for alteration of the Decreet whereby the Process not being recent in the Memory of the Lords they are put of new to peruse the Process and Probation For remeidâ— whereof the Lords Declare that in timecoming they will not receive any Petitions in relation to the Stopping or altering of any Decreet or Interlocutor pronouncing upon Advising of concluded Causes unless the Petition be given in within the space of two Sederunt dayes after pronouncing of the Decreet or Interlocutor Suspensions of the Excise to be past only in presentia December 6. 1677. THE which day the Lords Ordained that no Suspension shall be past of any Charges given for His Majesties Annuity or Excise except in presence of the whole Lords Warrant anent Precepts for giving Seasine upon Retours February 15. 1678. THE which day the Lords Ordained that Bills craving Warrant to the Director of the Chancellory to direct Precepts to a Sheriff in that part to grant Infeftement upon Retours in respect of the Sheriffs refusal to Infeft the Party shall not be past in time coming by the Ordinary upon the Bills but the same shall be past by the whole Lords in presentia and the Lords discharge the Director of the Chancellory to direct or give out any Precepts to Sheriffs in that part for granting Infeftment upon Retours unless the Warrant be past in presentia as said is ACT in Favours of the Lord Register February 22. 1678. THE which day the Lords considering that the Kings Majesty hath nominated and appointed Sir Thomas Murray of Glendook one of their number to be Clerk of Register with power to him to receive all the Profites of the Office since the advancement of Sir Archibald Primerose to be Justice-General and he being accordingly admitted to the said Office Therefore the Lords do grant Warrant to the Lords Newtoun and Hercus to take the Oaths of these Persons who by their Warrant were intrusted with the keeping of the publick Registers which were in the Custody of the late Clerk of Register if they have abstracted or imbazeled any of the said Register Books or Warrants or if they be all intire and in the same order as they are set down in the Inventar insert in the Books of Sederunt And ordain the Keys of the Rooms wherein these Registers are viz. that below the Parliament-House and of the Chamber in the Castle of Edinburgh to be delivered to the said Lord Register And grants Warrant and Order to Mr. Alexander Gibson one of the Clerks of Session to make Compt and Payment to the said Lord Register of the Dues of the Clerk of Registers Office which he has intrometted with by Warrand of the Lords and declare that this Act with the said Lord Register his receipt shall be a sufficient Exoneration to the said Mr. Alexander Gibson thereof ACT Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. THE Lords considering the abuse committed by giving out of Processes to some Persons attending the House and pretending to Negotiat in and mannage Processes who are neither Advocats nor Servants to Advocats For remeid whereof the saids Lords Discharge the Clerks of Session and their Servants to give up or lend out to any Persons any Processes or Writes produced therein except only to Advocats and their known Servants And the Lords Declare that each Advocat shall be allowed to have one Servant and if any shall desire to have more Servants allowed to them then one appoint them to represent the same to the Lords and they will take it unto their Consideration ACT prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords Iuly 23. 1678. THE which day the Lords did Discharge the Clerks to give up to Parties any Bills or Petitions whereupon there are Deliverances relateing to Interlocutors or Decreets in Processes except where the same are appointed to be seen and Answered And appoint the Clerks to keep the foresaid principal Petitions bearing Deliverances of the Lords and to give out to parties only doubles thereof ACT Discharging Advocats and Writers Servants to Write their Masters Subscription Iuly last 1678. THE which day the Lords Considering that there is a corrupt Custom lately crept in of Advocats and Writers Servants adhibiting their Masters Subscriptions to Petitions and Bills given in to the Lords which is not to be endured Therefore the Lords declare that if in time coming the Servant of any Advocat shall presume to Adhibite and Write his Masters Subscription to a Petition or to the out-giving or return of a Process or if the Servant of any Writer to the Signet shall Adhibite his Masters Subscription to a Bill of Suspension or other Bill used to be drawn by Writers that they will proceed against and punish these Persons as falsaries and forgers of Writes ACT Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers Ianuary 3. 1679. THE which day the Lord Register Newtoun and Hercus did make Report to the Lords that conform to the Warrand given them of the fourth of December last they had considered the condition of
the general Registers of Hornings and Inhibitions and of the particular Registers thereof in the Shire of Edinburgh during the Englishes time and found that during the said time there were no Hornings Booked for the space of five years and three moneths or thereby and that no Inhibition were Booked for the space of three years and six moneths and that they had called the Persons who were intrusted in that time as Clerks to and Keepers of the saids Registers of Hornings and Inhibitions and where they were dead they called and heard their Representatives but that one of these who had the Keeping of the saids Registers from the 5. of Iune 1652. to the 8. of September 1654. Called Thomas Freeman being deceased there can be none found to represent him which being taken in consideration by the Lords they Ordain the Hornings and Inhibitions to be Booked for the saids years by such Persons as the Lord Register shall appoint and allows them for their pains three shillings four pennies for ilk Leaf of the Book Written in such manner as the Lord Register shall appoint And the Lords Ordain the same to be payed by the Persons who enjoyed and possest the said Offices and were oblieged to have Booked the same or their Representatives And where they have none to Represent them by the Person who succeeded next in the said Office and his Representatives And Ordain Letters of Horning to be direct upon six dayes to the effect foresaid Orders for payment of the Dues of the Signet where Suspensions are appointed to be discussed upon the Bill Ianuary 24. 1679. THE Lords considering that they do frequently grant Warrands to the Ordinary upon the Bills to Discuss the Reasons of Suspension upon the Bill especially where the Charger desires the same And seeing that Warrand or Deliverance hath the effect of a Suspension past the Signet the Party ingiver of the Bill of Suspension being thereby secured against any further Personal Execution untill the Reasons of Suspension be Discussed It is just and reasonable in this Case that the Dues payable for affixing the Signet should be satisfied as if the Suspension had been past and exped Therefore the saids Lords do Ordain that before the Suspenders Process be heard upon the Reasons of Suspension before the Ordinary upon the Bills in order to the Discussing thereof there be payed in to the Clerk of the Bills or his Servant in that Office the Dues payable for affixing the Signet to the Suspension for which they are to be comptable to the Keeper of the Signet under the Lord Secretary and to make payment thereof as he shall call for the same And appoint the Clerk of the Bills and his Servants to keep a Note of such Bills of Suspension whereof the Reasons are ordained to be be Discussed on the Bills to the effect foresaid ACT in Favours of Intrant Advocats February 7. 1679. THE Lords considering a Petition presented to them by Robert Nairn Son to Mr. Alexander Nairn of Greenyards mentioning That the Petitioner upon a Reference of the Lords to the Dean of Faculty and the Advocats Examinators for taking Tryal of his Qualifications in order to his Admission to the Office of an Advocat having undergone both the privat and publick Tryal and Examination and thereafter applyed to the Dean of Faculty to assign him the Subject of his publick Lesson before the Lords the same is refused until the Petitioner make payment to the Advocats Box of 500. merks Scots conform to a late Act of the Faculty made to that purpose And the Lords considering that the Office and Imployment of Advocats being a liberal profession albeit they will not allow any sums of money to be imposed upon young men at their Entry to the Office and Station of Advocats yet they recommend to them to Contribute Voluntarly for a Library to be erected for the use of the Colledge of Justice ACT anent Executors Creditors November 14. 1679. THE Lords considering that it is imcumbent to all Executors by vertue of their Office to execute the Testament of the Defunctâ— by recovering his Goods and payment of the Debts owing to him for the behove and interest of the Relict Children or nearest of Kin Creditors and Legatars of the Defunct Therefore the saids Lords do Declare that Executors decerned and Confirmed as Creditors to the Defunct are holden as lyable to do Diligence for recovery of the Defuncts Goods and the Debts due to him Confirmed in the Testament or â—iked sicklike as other Executors Dative are holden to do by the Law and practick of this Kingdom And to the effect that Creditors be not unnecessarly intangled in the Execution of Defuncts Debts beyond their own satisfaction The Lords Declare that Executors Creditors shall not be oblieged to make a total Confirmation but only of so much as they shall think fit that there may be place for an Executor ad ommissa for the rest who shall be lyable to all Parties having Interest in the same way as principal Executors It is also Declared that Executors Creditors shall have license to pursue if they will make Faith that they are doubtful of the Validity Existence or Probation of the Debts of the Defunct for which they desire license the same being returned to the Commissars within such competent time as they shall appoint and upon Caution to Confirm as hath been granted in the Case of Licenses formerly ACT anent the Registration of Hornings November 19. 1679. FOrasmuch as all Letters of Horning are to be Registrate either in the Registers of the Shire where the Denounced Person dwells or in the general Register of Hornings keeped at Edinburgh and the Sheriffs Clerks and Keepers of these Registers in the Shires are by special Act of Parliament appointed to bring in those Registers to be marked by the Clerk of Register and when they mark the Registration of any Horning upon the Letters they should also insert therein the number of the leaves of the Register wherein the same is Registrate Which Order is renewed by Act of Regulation in Anno 1672. And the due observance hereof being of great Importance for the Benefite and Security of the Leidges Therefore the Lords do accordingly Ordain all Sheriff Clerks to bring in their Registers of Horning to be marked by the Clerk of Register and that in every Horning to be Registrate by them they insert at the marking thereof the particular leaf of the Register wherein they are Registrate and that the Sheriffâ— Clerk take in no Hornings to be Registrate in their Books but against Persons dwelling within their Shire And the Lords recommend to the Lord Register to take special care of the exact observance hereof And also Ordain the Clerk of the Bills not to receive any Bill of Caption or others upon any Horning not Registrate and marked in manner foresaid And Ordain Letters of Horning to be direct hereupon upon a Charge of fifteen dayes ACT against Sollicitation
security of the whole Leiges Yet the saids Lords understanding that by reason of the late Troubles and the Confusions ensuing thereupon Especially during the time of the Usurpers these Acts have been neglected to be put in Execution In so far as many Nottars are Deceased whos 's Protocals are not returned to the Clerk of Register or his Deputes but do remain in the hands of their Relicts and Children which occasions divers inconveniencies and divers of their Protocalls are upon perusal found to be Defective and Unformal and some of their Cautioners are not sufficient Likeas divers Persons pretending to have been admitted under the Usurpers do presume to Officiat as Nottars albeit they be not lawfully Authorized so to do For redresse of which abuses and disorders The Lords do Ordain Letters to be direct at the Instance of the Clerk of Register or his Deput Clerk to the admission of Nottars for charging the Relict and Executors of such Persons as are Deceaâ—ed and their Cautioners to bring in and deliver to them the Protocall Books of the saids Nottars conform to the Act of Parliament and their Respective Acts of Admission And also Ordains General Letters to be Direct at the Instance of the Clerk of Register or his said Deput for charging such Nottars as they are informed to have Protocalls Detective or Informal to produce their Protocalls before the said Deput at the head Burgh of the Shire where the Nottar does Reside and where the Cautioners found for any Nottar is insufficient to charge that Nottar to find new and more sufficient Caution And Ordain these General Letters to be Execute upon six days and that against such Particular Persons only as shall be given in a List under the hand of the Clerk of Register And the saids Lords do hereby prohibit and discharge all Persons who were admitted Nottars under the Usurpers to Officiat as Nottars untill they be of new admitted And the saids Lords considering that it is Statute and Ordained by Acts of Parliament and specially by the 78. Act Parliament 5. Iames 5. That all Sheriffs Stuarts Bailzies and others both to Bâ—rgh and Land shall present their Clerks in presence of the Lords of Session to be Examined Sworn and admitted by them and seing the Clerks of these Courts have neglected for some time by past â—o compear before the saids Lords to be tryed and approven by them and it being necessary and the publick Interest of the Leidges that these Acts of Parliament be punctually observed in time coming Therefore the saids Lords do ordain and require all persons who hereafter shall be nominate Sheriff Clerks Clerks of Sâ—ewartries and Bailiries before they enter to and exerce their Office of Clerkship to compear before the saids Lords that they may be tryed and approven by them conform to the Act of Parliament Certifying them if they failzie therein they shall be deprived of their Offices ACT concerning Bills of Suspension November 9. 1630. THE Lords considering that by former Acts of Sederunt of the 9. of February 1675. and the 3. of Iuly 1677 They did give Warrant to the Ordinary upon the Bills to allow a sight of a Bill of Suspension to the Charger and to stop Execution for some time not exceeding a Moneth declaring also that a Bill of Suspension signed by the Ordinary though not expeded at the Signet should import a stop of Execution for the space of fourteen dayes from the date it was signed that in the mean time sufficient Caution might be found and that the Clerk of the Bills might enquire anent the condition of the Cautioner And now finding that abuses have crept in stops being procured from several Ordinaries from time to time and that when the first fourteen dayes after a signed Bill were elapsed a new one was presented and past which stopped Execution for other fourteen dayes and so might continue for a long time Therefore the Lords do declare that they will give no stops of Execution hereafter upon Bills of Suspension fourteen dayes from the date being a sufficient time both for seeing and expeding the Bill And Declares all other stops to be void except where Causes are ordained by the Lords to be Discust upon Bills and ordains the Clerk of the Bills to make a Minut-book both of past and refused Bills by the Alphabetick Order of the Parties sirnames which he is to make patent to any Charger that shall desire to see the same gratis and discharges him to present any new Bills in that Cause except to the whole Lords in time of Session or to three Lords in time of Vacance as he will be answerable at his peril and because Parties or their Procurators are accustomed to procure Suspensions upon pretence that the Copy of the Charge given by the Messenger is general or unformal and for verrifying thereof do produce forged Copies and sometime forged Writes for instructing Reasons of Suspension founded thereupon never intending to make use of the same and therefore do suffer Protestations to pass For remeid whereof the Lords do declare that if the Charger shall produce such a Suspension or a duplicat thereof under the hand of the Keeper of the Signet that in that case the Lords besides the ordinary expenses of Protestation will modifie large Expenses to the Charger for his delay and in case Protestation shall not be admitted but the Suspension shal come to be Discust and at the Discussing the Charge or other Writes mentioned in the Reason of Suspension be not produced The Lords Declares they will hold these Writes false and sorged and modifie large Expenses to the Charger but prâ—judice to insist against the forger of the saids Copies or Writes and ordain a Copy of this Act and of the other two Acts above-mentioned to be affixed upon the Wall of the Outter-House and Copies thereof to be delivered to the Clerk of the Bills to remain affixed on the Wall of the Bill-Chamber that he may exactly observe the same ACT anent the marking of Advocats Compearance for Defenders November 25. 1680. THE Lords declares that in time coming where several Defenders are conveened in one Summonds and that at the calling thereof by the Clerk an Advocat shall be marked compearing indefinitly for the Defenders and who shall likewise return the Process that Advocat shall be holden compearing for all the Defenders unless by the return upon the Process he qualifie his Compearance and express for which of the Defenders he compears and for which of them he doth not compear ACT in favours of the Macers February 15. 1681. THE which day there being a Petition given in to the Lords by their four ordinary Macers representing that where the Lords are in use upon application of Parties to grant Commissions for taking the Oaths of Parties and the Depositions of Witnesses in Causes where it appears by Testificats produced that the Parties or Witnesses are through age and infirmity unable to travel And sometimes Commissions
these Rights proceeding against him as appearand Heir to these predecessors and now assigned to him because there were other appearand Heirs specially condescended on nearer of Blood The Pursuer answered non Relevat to take away his Infeftment which behoved to be Reduced Secondly Non competit to the Defenders unless these nearer appearand Heirs were compearing for their Interest The Defender Replyed that the Infeftments having obtained no Possession and having proceeded only upon a Charge to Enter Heir against the Pursuer by Collusion It was competent by Exception seing there was no Service nor Possession nor any thing done that the nearer Heirs were oblidged to know and it was also competent to the Defenders not to deliver the Writs to any having no Right thereto they being lyable to deliver them to the nearest Heir of the true owner The Lords Repelled this Defense against the Exhibition reserving it to the Delivery in which they found it competent to the nearer appearing Heirs without Reduction Rentoun of Lamertoun contra Earl of Levin and Alexander Kennedy July 11. 1662. JOhn Rentoun of Lamertoun as Heir to his Father having charged the Deceast Earl of Levin for the Sum of due by him to umquhil Lamertoun The Earl suspended upon Compensation by six Bonds granted by umquhil Lamertoun to the umquhil Countess of Levin four of them to her self and after her Decease to her Daughters and two of them blank in the Creditors name which being done stante Matrimonio by this Lady did belong to her Husband jure mariti and not to her or his Daughters These Bonds were produced out of the hands of Alexander Kennedy sometime Master Porter of the Castle of Edinburgh who declared that he had the foresaid six Bonds in Trust from the umquhil Countess and the Laird of Lamertoun in Anno 1649. Levin being then Captain of the Castle of Edinburgh Lambertoun Constable and the said Alexander Porter and produced a Paper of Trust subscribed by Lambertoun and my Lady bearing that the Bonds were put in Alexander 's hands as a faithful Person whom both Trusted to be keeped till after the Ladyes Death and then delivered according to her direction against which Writes Lambertoun raised Improbation and Alexander Kennedy abode by the same and the Earl of Levin declared he made use of them upon the ground foresaid in his Improbation The six Bonds being written by Alexander Kennedy and Iames Rule who is dead and the Witnesses being George Watson Spittel and Young and in some of them Alexander himself all being dead but Alexander the Producer the direct manner of Improbation thereof ceassed and therefore they proceed to the indirect manner and give in many Articles of Improbation and the Earles Articles of Probation The Relevancy of which being Dispute to quadruplyes in Write and all Persons that either Parties desired being examined hinc inde and their Testimonies published to either Party and they having thereupon Dispute both as to the Relevancy and Probation in Write and being heard at last viva voce The Lords proceeded to Advise the Cause The weight of the whole matter lay in these Particulars mainly First For astriction of the Writs the said Paper of Trust holding in it two living Witnesses and one dead being true the Bonds related therein could not be false This Paper could not be Improven indirectly because the direct manner was competent by two living Witnesses whereof the one Deponed that the Subscription was like his Subscription as he Subscribed at that time being young and the third Witness being dead proves It was answered that the Witnesses insert proved not because comparatione literarum Crawford the Defunct's Subscription was altogether unlike his true Subscription produced Learmont sayes his Subscription was only like his and though Kill sayes it was his Subscription yet none of them Depones to have seen it Subscribed by any Body or by any Witness nor to know any thing of the time place or truth of the matter contained in the Writs being but an Evidence to keep the Witnesses in remembrance either of the Matter or of the Subscription of the Principal or themselves albeit they need not be proven here as in England by the Witnesses insert Yet in the case of Improbation if the Witnesses prove nothing of the Fact or Subscription as remembring that they or the Party Subscribed but only Deponing that it is their Subscription which can import no more of certain knowledge then that it is like their Subscription seeing none can swear that it may not be feigned so like that they cannot know it and albeit that would be sufficient where nothing is in the contrair Yet where there is strong presumption in the contrair as the Writ not being in the Parties hands but in the hand of a third Party malae famae and who hath at least betrayed his Trust never having made these Bonds known till six or seven years after the Countess of Levins Death and then offering to sell some of them to others and with all the Paper of Trust the Body thereof being written with one hand and the filling up of the Witnesses with another which no body hath or can condescend upon nor are Designed therein so the same being null by Act of Parliament cannot sufficiently astruct the truth of the other Bonds being in themselves suspect The Lords found the Paper of Trust not sufficiently to astruct nor the Testimonies not to prove it sufficient in respect of the grounds foresaid being instructed and the many presumptions against these Writs Therefore they improved the said pretended Paper of Trust. There was further produced for astructing the Bonds two Holographs alleadged Written and Subscribed by Lamertouns owns hand relative to the Bonds and Trust and for proving these were Holograph they produced a Holograph Accompt Book of Lambertouns and six Witnesses of whom three or four were without exception and the whole Deponed that they truly believed that the Holographs were Lamertouns hand and Lambertoun and the Lady Levins Subscriptions The question then was whether these Papers were so proven to be Holograph that they did sufficiently astrict the Bonds notwithstanding all the grounds instructed against them The Lords found Negative upon this consideration that when the Probation of Holograph is by Witness who saw the Holograph Writ Written and Subscribed albeit they be not instruct it is a full probation admitting no contrary probation but when it is only comparatione literarum or by Witnesses Deponing that they believe or that positively it is the hand writ of the Party that can import no more but that it is so like that it is undecernable for no man who saw it not written can positively swear with knowledge that it is impossible to fenzie the hand so like that it is undecernable and therefore holograph so proven admits a stronger contrary Probation and therefore the Lords found that the Evidents against the Bonds were stronger nor this Probation of holograph There was
because he represents Frazer of Phillorth his Grand-father who Disponed the Lands in question to Doors and was oblieged to infeft him and did de facto resign in the Kings hands in his favour and so personally objection umquhil Phillorth Doors Author would be for ever excluded from objecting against Doors Right which flowed from him so neither can the Defender who represents him object against the Pursuer who is Successor in Door 's Rights The Defender answered that being called albeit he had no Right in his Person he might propone a Defense upon a Nullity in the Pursuers Right viz. that it is a non habente potestaâ—mâ— which is very competent here by exception This Declaâ—ator â—eing judicium petitorium wherein he may well repeat this Defense without necessiâ—y to call Doors because Doors being called in the Improbation all Infeftments in his Person are Improven for not production and so the Reason is instantly verified and albeit he were Successor to his Grand-father which he denys yet he may well alleadge that any Right flowing from his Grand-Father is personal and incompleat and can be no ground of Declarator of Property The Lords repelled the Defenses and found it not competent to the Defender to quarrel the Pursuers Authors Right unless he had a better Right Skeen contra Lumsdean Iuly 19. 1662. SKeen having Charged Alexander Lumsdean upon a Bond granted by Mr. Thomas Lumsdean as principal and the said Alexander as Cautioner he Suspends on this Reason that the cause of the Bond was Bills of Exchange drawn by Verhage upon Kezar in Camphire to be payed to Skeen or his Order which Bills Skeen ordered to be payed to Mr. Thomas Lumsdean's Wife and Mr. Thomas granted the Bond charged on for the saids Bills which Bills were protested upon Kezar's not paying of the Bills as the Protest bears To which protested Bills Mr. Thomas Lumsdean assigned the Suspender and whereupon he now alleadges that he must have allowance of the Bills protested being the cause of the Bond and therefore Skeen himself is lyable for the Bills which must compence the Charger The Pursuer answered that the Reason ought to be repelled because he offered him to prove that albeit the bills were protested for not payment by Kezar on whom they were drawn yet Mr. Thomas Lumsdean having gone back to Verhage who drew them Verhage payed Mr. Thomas and that before the Intimation of the Suspenders Assignation 2ly That Mr. Thomas Lumsdean being Factor in Camphire in his Factor Book upon the 109. page thereof there are four posts of Payment payed by the said Verhage to Mr. Thomas Lumsdean at diverse times conform to the Magistrates of Camphire their report upon the Lords Commission bearing that the said Factors Compt Book is Authentick and unvitiat and that Verhage who drew the Bills and Kezar upon whom they were drawn had both sworn before them that Verhage had payed the same to Lumsdean so the question was upon the manner of probation whereanent the Suspender alleadged 1. That Compt Books not being subscribed were not probative Writs even against the Merchant himself 2ly That at least they cannot prove against the Suspender his Assigney 3ly That they could be no better then Holograph Discharges by the Cedent which cannot instruct their own Date against the Assigney and so cannot prove the same to have been before the Intimation as for the Testimonies of Verhage and Kezar their Testimonies cannot take away Writs and yet are suspected being both Debitors for the Bills and that it was not instructed who write the Book whether Lumsdean himself or his ordinar Book Keeper The Lords found the Probation sufficient against the Assigney the Charger also proving that the Books were written by Lumsdean himself or by his â—rdinar Book-keeper and thought that the Book proved against this Assigney being Mr. Thomas own Brother and no suspition he would wrong him and there being four several Posts of payment in several Months besides the Depositions of the foresaids persons Fiddes contra Iack Iuly 19 1662. FIddes pursues Iack for payment of a Bond of 500. merks which Iack acknowledged to have received in custody form Fiddes to be keeped as his own Iack alleadged that he had but the custody and did conform to his Obligation he sent the Money to Dundee in Anno 1650. where he lost both it and much more of his own at the plunder of Dundee The Pursuer answered no way granting that his Money was lost at Dundee yet it ought not to liberat the Defender because he oft-times required and desired the Defender to pay him his Money before the plundring of Dundee and seing he did not then give it it was lost upon the Defenders hazard The Defender answered that any requisition was made was but verbal without Instrument and that it was made to the Defender being in Edinburgh after this Money and the Defenders whole means was sent to Dundee for safety and that at the time of any such desire he shew the Pursuer so and bid him send for it to Dundee when he pleased he should have it The Lords before answer having ordained Witnesses to be examined hinc inde and having advised the same found that the Pursuer did desire his Money and at that same time the Defender told him it was at Dundee and said he might have it when the pleased to send for it and Witnesses also proved that he was at Dundee and was in esteem as a man of good means then and that he was there aâ—the plunder of Dundee and ever since was in a poor miserable condition and some of them deponed that he had a considerable sum of Money far above this in question there The Question was whether this probation was sufficient to assoilzie albeit none of the Witnesses did particularly Depone that they knew the Pursuers Money to have been at Dundee and lost there Tâ—e Lords found that the probation was sufficient the Pursuer giving his oath in Supplement that it was there and lost there for they considered that at the time of the Pursuers Requisition the Witnesses proved the Defender declared it was there and that ex natura rei it was hard to prove particularly this Mony being a Fungible to have been lost there but that it behoved to be presumed so seing the man lost his whole means there and hath been poor ever since Montgomery of contra Eodem die MR. William Wallace having obtained a Disposition of the Lands of Hagburn from Thomas Hunter he gave a Back-bond oblieging him to sell the same at the best avail and as a part of the price to pay a Bond of Provision to Thoma's Sisters and Brother granted by their Father and having retained his own Sums and such as he was Cautioner for was oblieged to count for the rest and being first pursued before the Englishes and now before the Lords he was decerned to take the Lands at sixteen years purchase and a half and to count
are no wayes sufficient by her consent that the Children should be provided with the Coal was in contemplation of her eldest Sons Marriage which took no effect and the rest are meire presumptions and dato she had known privata notitia non nocet unlesse there had been some Intimation Citation or Judicial Act to put her in mala fide and especially private knowledge infers not mala fide unless it had been anterior to her possession The Pursuer answered to the last point that albeit private knowledge in some cases would not infer mala fides among strangers yet a mother knowing the right of her own Children whereof one were in her womb it puts her in mala fide seing she was thereby oblidged to have sought Tutors and preserved their Right The Lords found the Evidences sufficient to prove the Defender to have been in mala fide and therefore repelled this Defense also and Ordained the Defender to comp for the intromission but found that the charge ought not to be stated according as the profit of the Coal fell out to be but as the profit thereof might be communibus annis in regard she quat her certain Liâ—erent of the Lands for an uncertain Coal and therefore abated a fourth part of what the free Profit of the Coal was found to be by the last accompt Alison Wardlaw contra Robert Gray Eodem die ALlison Wardlaw as Executrix Creditrix confirmed to her Husband and having confirmed the Rents due to him by Robert Gray Pursuer therefore The said Robert alleadged absolvitor for a part of these Rents because payed which he offered to prove by the Defuncts Compt-book in the Pursuers hands which Compt-book is written with the Defuncts own hand and bears several Recepts payed by the Defender at several times The Pursuer alleadged that the Compt-book cannot prove because it wants a subscription and Compt-books do only prove contra scribentem in the case of Merchants who keeped exact current Compt-books which is a special priviledge of theirs and was never extended to any other case nor to any other person for a discharge subscribed before Witnesses would not liberat if it were not delivered to the other Partie much less can a Compt-book Secondly Whatever it could work against the Writter and his Heirs yet not against Assigneys or Executors Creditors who are in effect singular Successors for their own payment otherwayes no Assigney could be secure but after the Assignation the Cedent might write Receits in his Book but though he should grant a Holograph Discharge bearing dateâ— before the Assignation it would not prove against the Assigney The Defender answered that the Compt-book was sufficient to prove liberation being by a Judicious Person though not a Merchant for it could be done to no other intent then to preserve the memory of the payment made which though most ordinar amongst Merchants is no special priviledge of theirs and albeit an undelivered discharge would not be sufficient yet that being but unicum hirographum requiring delivery hath no effect without delivery but a Compt-book contains many Writs and requires no delivery and albeit it should not prove against an Assigny as neither would an holograph discharge yet it is sufficient against an Executor Creditor who can leave no Right till the Defunct be dead and so their can be no hazard of Recepts posterior to their Right and therefore against Creditor Holograph discharge would prove The Lords found that the alleadgeance of the Compt-book written with the Defuncts own hand sufficient to instruct payment of the Articles mentioned therein but seing the Defender who payed was on life and present Ordained him to make faith that he truely payed accordingly Primrose contra Duij November 22. 1662. PRimrose having pursued a Reduction of a Decreet Arbitral betwixt him and Duij The said Duij alleadged homologation of the Decreet by acceptance and payment of a Precept direct to him by Primrose for payment of a part of the Sum contained in the Decreet bearing expresly to be in satisfaction of a part of the Decreet which was found relevant and admitted to Duij's probation for proving whereof Duij produced the Precept acceptance and Discharge It was alleadged that the Writs produced proved not to the homologation of the Decreet as to the Article controverted being the fraught of a Vessel which Duij offered to prove to have been decerned to have been within the third part of the just avail and the Precept bare payment of five Dollars decerned for the deterioration of the Tackling by vertue of a promise The Lords having considered the Decreet Arbitrall and Precept found it proved not the homologation as to the point in Question because the Decreet contained divers heads The Precept bare to pay the deterioration of the Tackling and bare expresly that the same was unconâ—raverse and founded upon the Defenders promise Sawer contra Rutherfoord November 25. 1662. SAwer having Wodset some Tenements in Edinburgh to Rutherfoord wherein there was a Clause irritant bearing that if Sawer did not put Rutherfoord in possession of the hail Tenement the Reversion should expire whereupon Rutherfoord obtained Declarator of the expyring of the Reversion because Sawer had detained a part of the Tenement Sawer raised Suspension and Reduction of the Decreet of Declarator upon these Reasons First The clause irritant was punctum legis Commissaria in reprobat in Law Secondly Because by the Act of Parliament 1661. betwixt Debitor and Creditor It was declared that claules irritantâ— for not payment of the Sums in Wodsets since 1649. should not be effectual The Defender answered to the First Reason that by Act of Sederunt of the Lords in Anno 1642. Clauses Irritant and Failzies were declared effectual and albeit the Lords ex gratia are in use to suffer Parties failzeing to purge the failzie by satisfying Damnage and Interest at the Barr yet it could not now be received a Decreet in foro contradictorio To the second Reason It was Answered that the said Act of Parliament was special in relation to Clauses Irritant for not payment of the Sum in the Wodset which was stricti juris and could not be extended to this wilful Failzie in the Pursuers not removing and possessing him and for the Decreet it was in absence albeit a Supplication was given in after the Decreet desiring to be heard whereupon he was not heard but the answer to the Suplication bare that his desire was only competent by way of Susppension and Reduction The Lords found the Decreet not to be in foro contradictorio and therefore reponed the Pursuer to purge the Failzie by possessing the Defender and paying damnage but found that the Clause in the Act of Parliament reached not to this Case but whereas the Pursuer craved compt and reckoning of the profits of the Wodset Tenement by the said Act of Parliament bearing That Improper Wodsets where the granter of the Wodset is in the hazard of Publick Burden c.
was Sealed although it mentioned former Requisitions that was but the assertion of the Nottar or of the Keeper of the Register and therefore preferred Nasmiths Gift Andrew Clapertoun contra Lady Ednem December 11. 1662. IN Anno 1621. Umquhile Sir Iohn Edmistoun of Ednem granted a Bond of Provision to Iean Stirling of two Bolls of Victual which he obliged himself to pay to her out of the Mains of Ednem or any other of his Lands by vertue thereof she was in Possession out of the Mains of Ednem till the year 1640. Andrew Clappertoun her Son and Assigney pursues the Lady Ednem as Intrometter with the Rents of the Mains of Ednem to pay the Pension since The Defender alleadged Absolvitor because she stands Infeft in the Mains of Ednem by vertue of her Liferent and thereupon has possessed and the Pursuers Pension is meerly personal and does not affect the Ground nor is valid against singular Successours and though conceived in the best way can have no more effect then an Assignation to Mails and Duties which operats nothing against singular Successors unless it had been an Ecclesiastical Pension clothed with Possession having Letters conform which only is valid against singular Successors The Lords found the Defense Relevant Iohn Oglvie contra Sir Iames Stewart Eodem die PAtrick Leslie and several Cautioners granted Bond to Sir Iames Stewart who assigned the same to John Denholme who used Execution in his Cedents name and took some of the Debitors with Caption and being in the Messengers hands this Iohn Ogilvie assisted to the making of their escape and thereupon being incarcerat by the Magistrats of Edinburgh which concourse of their Authority by their Officers as use is in executing Captions within Edinburgh by aggrement the said Iohn Ogilvie payed 800 lib. to be free and thereupon obtained Assignation from Sir Iames Stewart to as much of the Bond with warrandice from Sir Iames own deed and excepting from the warrandice an Assignation formerly made by Sir Iames to Iohn Denholme Iohn Ogilvie having pursued one of the Debitors he was assoilzied upon a discharge granted by Sir Iames Stewart and Iohn Denholme and they both with one consent whereupon Iohn Ogilvie charged Sir Iames upon the Clause of Warrandice who Suspended and alleadged that the foresaid discharge was nothing contrair to his oblidgement of Warrandice because in the Warrandice Iohn Denholmes Assignation was excepted and consequently all deeds done by Iohn as Assigny Ita est this discharge was granted by Iohn Denholme and would be valid by Iohn Denholme subscription and there was no prejudice done to this Pursuer by Sir Iames Stewarts subscription seing without it the discharge would exclude him The Charger answered that Iohn Denholme subscribed but as Contenter and was not mentioned in the discharge as Assigney The Suspender answered that the discharge being with his consent was as effectual as if he had been principal Partie and each of them discharged with others consent The Lords found the Reason of the Suspension relevant George Loggie contra Peter Loggie Eodem die GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother gave a Wodset therefore The said George being an old man without hope of Children the Reversion was only granted to George and the Heirs of his own Body and his Liferent of the Wodset Lands was Reserved without mentioning of any Back-tack Dutie or Annualrent George having used an Order and Consigned the 800. merk obtained Declarator Peter Suspends and alleadges no Redemption ought to have been till the Annualrent were consigned with the Principal The Charger answered that the Contract of Wodset bare no Annualrent The Suspender answered that albeit it did not yet he having lent his Money in these Terms in hopes of Succession and his Brother having now Married a young Wife he ought not to take advantage of him seing the Annualrent is due in equitie for the profit of the Money The Lords in respect of the Tenor of the Contract of Wodset found the Letters orderly proceeded without any Annualrent and that in this case it could not be due without 〈◊〉 had been so pactioned and agreed Lord Balmirino contra Town of Edinburgh December 18. THe Lord Balmirino pursues the Town of Edinburgh for Spoliation of the Tynds of the Aikers of Restalrige whereof the Towns Hospital had a Tack which being expired Inhibition was used yearly for several years The Defender alleadged absolvitor from any Spuilzie of Teinds because since the KING' 's Decreet Arbitral and the Fyfteen and Seventeen Acts of Parliament 1633. Spuilzie of Teinds is taken away especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King 's Declaring every Heretor shall have the drawing of his own Teynd and the benefit of a Valuation and in the mean time so long as the Teynds are not Valued the Heretors are only lyable for the Fyft of the Rent in name of Teynd Secondly By a Contract betwixt the Town and the Pursuers Father of the Aikers of Restalâ—ige lyand runrig with these are set for half a boll beer the Aiker which is by the Contract Declared to be the just and true Rate and Value thereof which by necestar consequence declares the Value of the Teynds now in Question being runrig with the other The Pursuer answered to the first That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity and albeit the foresaid Clause therein be general yet it is clear by the 17. Act which is posterior that the first part shall be the Teynd after the Valuation duely led which hath been constantly allowed by Custom of the Commission of Plantations which gave only warrand to Heretors to lead their own Teynd during the Dependence of a Valuation and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts As to the second whatever be the way of conception of the Tack for the other Aikers not in question be though it did acknowledge the same to be the just Value thereof yet it cannot extend to other Teynds seing where the Parties agree in the matter they are not solicitous for the conception of the words which cannot be drawn in consequence to any other matter The Lords repelled both these Defenses but declared they would not sustaine Spuilzie as to the Oath in Litem but admitted the Value of the Teynd to the Pursuers probation Reserving to themselves the modification of the prices if they should be exorâ—itantly proven but not of the quantaties Lady Tursapie contra Laird of Tursapie December 20. 1662. THE Lady Tursapie pursues the Laird of Tursapie who succeeded as Heir to his Brother her Husband for the Aliment of the Defuncts Family till the next Term after his Death and specially for the Alinent and to the Pursuers Son Heir appearand to his Father The Defender alleadged absolvitor because the Lybel was no wayes relevant against him as Heir but by the
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
were Infeft yet there may be Inhibition anterior Reversion or Trust or nullities in their Right and if these were denyed they behoved to be instructed and so Terms of Probation run while in the mean time the anterior Diligence of others Appryzings in the countrey before the Sheriff would prevent them and it would hinder any Appryzings ever to be deduced at Edinburgh and it were hand to put Creditors who knew not there Debitors Charter Chist to disput their Rights as in an executive Process But the Lords inclined that Sir Johns Infeftment should be rather produced and reserved out of the Appryzing then the Appryzing stopped Falconer contra Earl of Kinghorn Eodem die FAlconer pursues the Earl of Kinghorn for payment of a Bond wherein his Father was Cautioner It was alleadged the Bond was null as to Kinghorn because it mentioned in the first place three Witnesses to another Parties Subscription per expressum mentioning two without their designation or expressing whether they were Witnesses to either or both the two Cautioners and therefore the Bond was null by the Act of Parliament It was answered that according to the ordinar custome they offered to design It was Replyed that the designation behoved to be of living Witnesses for seing in it self the Bond is null by the Act of Parliament and that the Lords by custom have supplyed such Bonds per equivalentiam The intent of the Act of Parliament being only that by the Designation the Witnesses might be known and thereby a means of improbation afforded if the Writ were quarrelled but after the Witnesses are dead the Degsination of them cannot attain that effect The Lords Ordained the Pursuer to Design living Witnesses or otherways to condescend upon other Adminicles to astruct the verity of the Subscription of the Bond. Beg contra Beg. February 4. 1665. THomas Beg in Edinburgh having a Son of his first Marriage and providing his Children of two subsequent Marriages to his Means The Son of the first Marriage pursues his Father for his Mothers third and craves Annualrent therefore he being Minor and his Father his Tutor of Law and therefore lyable as other Tutors for Annualrent Which the Lords found relevant Paterson contra Pringle Eodem die ISobel Paterson having lent to Pringles Wife a 100. lib. scots and having received a Bond of Pringles in Pand thereof he thereafter seeking a sight of the Bond took it away without warrant whereupon she obtained Decreet against him before the Commissaries which He and his Wife Suspended on this Reason that he never borrowed any Sum from the Charger and if his Wife did borrow the same he knew nothing thereof or that it was applyed to his use and that she Impignorat his Bond without his knowledge or warrant The Lords found that her having of the Bond in her hand did infer a warrant to borrow the Money and oblidge her Husband being a matter of small importance Peter Pallat contra Thomas Fairholm â— February 7. 1665. THomas Fairholm Merchant in Edinburgh having written a Letter to Peter Pallat Factor at Burdeoux to Loaden him 30 Tun of Wine The tenor of the Letter is that in respect Fairholm was not acquainted with Pallat he had written upon the Credit of his Brother Ninian Williamson Factor at London who was Pallats ordinar correspondent to Load these Wines in that Ship which carried the Letter upon Fairholms accompt and bore That Williamson had Provisions to satisfie the same and that he would either remit to Pallat or draw upon him as he found convenient This Letter being sent under a cover of Williamsons to Pallat the Wines were sent into Scotland and Williamson broke about a year thereafter whereupon Pallat pursues for his Money from Fairholm who alleadged absolvitor because he having demanded the VVines not upon his own Credit but Williamsons and Williamson having sent under his own cover as Pallaâ—s Letter bears the said Order in which there being mention that Williamson had Provisions in his hand his sending the Letter of that Tenor under his own cover is an acknowledgment that he had those Provisions and thereby he constitute himself Debitor to Pallat and freed Fairholm likeas Pallat acquiesced therein and drew Bills upon Williamsonâ— which were accepted but not payed and was silent never demanding Money from Fairholm till Williamson was broken so that first Fairholm is free by the tenor of the Letter and next though thereby he had been bound yet the damnage sustained by Pallats silence till Williamson was broken whereby Fairholm was hindred to draw his Provisions out of Williamsons hand and thereby lost the same through Pallats fault ought to compence Pallat and exclude him Pallat answered to the first that he opponed the Letters which bore expresly the Wines to be sent for Fairholms accompt so that albeit it mention Williamsons Credit and that he had Provisions it makes him but expromissor and liberats not Fairholm as to the second anent the damnage Pallat being secured both by Fairhlom and Williamson might at his option take himself to either or to both and cannot be accompted to have done any fault in forbearance of either though an unexpected accident of Williamsons breaking interveened so much the more as Fairholms Letter does not order to draw upon Williamson but bears That Fairholme would either draw or remit at Williamsons conveniency So that Pallat has not failed in the strick observance of the Order And if need be Pallat offers him to prove by the custom of Merchants in the most eminent places abroad that such Letters did never liberat the Writer And Fairholm offered to prove that such Letters did liberat the Writer unless the receiver had protested and intimat to the Writer that he would not acquiesce therein simply but also in the Credit of the Writer The Lords found that the Letter did not liberat Fairholm notwithstanding of his forbearance to demand and therefore repelled the Defenses and decerned but liberat Fairholm from the exchange and re-exchange in regard of Pallats silence neither would the Lords delay the matter upon the opinion of Merchants David Graham contra George Bruce and Doctor Mairten Eodem die DAvid Graham upon the sight of a Bond unregistrat of George Bruces obtained Arrestment and therewith Arrested a Sum in Doctor Martines hand which was loosed and after the loosing Assignation being made by George Bruce to his Sister In which case the Lords found That the Arrestment being upon the Bond before Registration might be loosed and notwithstanding of the loosing seing it was not now payed by the Debitor they ordained it to be made forthcomand to the Arrester and preferred him to the Assigney albeit it was alleadged that the tenor of the Arrestment was but till Caution was found which being found albeit the Debitor could not oppose to make it forthcoming yet an Assigney after loosing the Arrestment may let The Lords considered that the Caution found in loosing Arrestments is overlie and insufficient
they were publickly called to the Bar and received without any objection so that now none is competent 2ly That there is no relevant Exception yet alleadged for the being a Town Officer is no legal Exception neither to be of a mean condition nor to be of a small Estate if he were worth the Kings Unlaw and for the presumptions they were but meer conjectures for it was free for a man to make his Disposition all with his own hand or before Witnesses and what his motives has been to do it cannot be known and so ought not to be presumed fraudulent nam nullum vitium presumitur The Lords having fully considered this case and having Debated whether Witnesses at all were receivable to astruct the Date of a holograph Writ and also whether these Witnesses adduced were sufficient they found that in respect of the presumptions of Fraud adduced these two Witnesses were not sufficient to astruct without further Adminicâ—es either by Witnesses of unquestionable Credit or by Writ Procuratorfiscal of the Commissariot of Edinburgh contra Thomas Fairholm Iune 23. 1665. THomas Fairholm being Charged to give up an Inventar of the Goods and Gear pertaining to umquhil Alexander Deninstoun whose Daughter he had married He Suspends on this Reason that the Defunct had granted a Disposition to one of his Daughters of his hail moveable Goods and sums of Money so that he had nothing the time of his Death and there needed no Confirmation but he might lawfully possess by vertue of his Disposition and there was no Law to force Persons in such a Case to Confirm neither had it ever been sustained by the Lords It was answered that it was juris publici to have the Goods of Defuncts Confirmed that nearest of Kin Children Creditors and Legatars might know the condition thereof and this Defuncts moveables albeit Disponed yet not Delivered remained in bonis defuncti and so behoved to be Confirmed The Lords having Read the Disposition and finding it to be general omnium bonorum that he had or should have the time of his Death and there being nothing alleadged of any onerous Cause or that it was before his sickness albeit the Case was new yet they found there was necessity of Confirmation in this Case But if it had been a Disposition only of special things as Bonds or Goods or had been for any onerous Cause or had been made in leidg pousti and any symbolical Delivery the Lords were not so clear in it but resolved to hear such Cases in their own presence when they should occur Collonel James Montgomery contra Wallace and Bouie Iune 24. 1665. THe Collonel as Heretor of the Miln of Tarboltoun having pursued Bouie for abstracted Multures of Drumlie It was alleadged for Bouie and Wallace of Garricks who had Disponed to him with warrandice absolvitor because Wallace and his authors were Infeft in the Milns and Multures before the Pursuers Infeftment of the Miln The Pursuer Replyed that the Thirlage was Constitute by a Decreet in Anno. 1569. against the Tennents of Drumlie therein mentioned The Defender answered First that the Heretor was not called 2ly That it did not appear that these Tennents did dwell in Drumlie Wallace there being two Drumlies lying contigue one called the Dinks Drumlie the other called Drumlie Wallace 3ly That for any Possession they offered them to prove that it was interrupted from time to time by going to other Milns The Lords having Ordained Witnesses to be Examined hinc inde whether the Tennents in the old Decreet did possess Drumlie Wallace or the Dinks Drumlie 2ly What Possession the Pursuer and his authors had 3ly What Interruptions the Defender and their authors had many Witnesses being Examined hinc inde It was clear that since the year 1653. when Capringtoun the Pursuers author died there was no Possession and there was not above twenty eight years Possession proven before because there was no Witness of that age that could have been of Discretion fourty years before the year 1653. but they found it proven that the Persons mentionate in the old Decreet or some of them were Possessors of Drumlie Wallace and also there was a Tack produced set by the Pursuers author to one of the Tennents of Drumlie wherein it was provided that the Tennent should relieve him of the Multures and did not express what Miln The Lords found the old Decreet although the Master was not called thereto was not sufficient alone yet with a long Possession thereafter they found the same was sufficient to Constitute the astriction and found the Interruptions by going to other Milns were not so frequent and long but that they might have been private and Clandestine and the Probation during memory before this contraversie was found to instruct anterior Possession to compleat prescription Irwing contra Strachan Eodem die ALexander Strachan as Assigney by Patrick Gordon Charges Iohn Irving to make payment of a Bond of 500. merks which being Suspended on this Reason that the Cedent was Debitor to the Suspender in a greater sum being oblieged for the grouth of certain Lands of the Cropt 1633. and certain Bolls of Meal as the Duty thereof The Charger answered that this was not liquidat against him nor against his Cedent before his Assignation The Suspender answered that it was liquidate before in so far as there was a Decreet of Liquidation obtained against the principal Party for whom the Cedent was Cautioner in the Contract which must be sufficient against the Cautioner albeit he was not called because his obligation was but accessory unless he could instruct Collusion and this Decreet of liquidation proceeds upon Probation of Witnesses The Lords sustained the Compensation and found the Liquidation sufficient being against the Cautioner though he was not called and against this Assigney seing the Decreet was before the Assignation Alexander Ferguson contra Steuart of Askeoge Iune 27. 1665. ALexander Ferguson having obtained a Presentation from the King as one of the Prebenders of the Chapel-Royal and thereupon a Decreet conform and having Charged Steuart of Askeoge he gives in his special Charge that the Paroch of Inchgarth which is now annexed to Rothesay belonged to his Prâ—bendrie as being a part of the Patrimony of the Chapel-Royal It was answered for Askeoge that he bruiks the Teinds by vertue of a Tack granted by Mr. Ninian Steuart Minister of Rothesay whereof this Kirk now annext is a part and that there is nothing appears to instruct that these Teinds were ever Mortified to the Chapel-Royal or that the Chapel-Royal was in Possession thereof The Pursuer answered that seing he had the Kings Gift and Decreet conform it was sufficient unless the Defender would alleadge that the said Mr. Ninian Steuart had a better Right or was in Possession for the King being the Common Author and Fountain of Rights His Majesties Gift is sufficient against any that show not a better Right and as for the Tack produced it is null
a Compt by the Debitors own hand writ though not subscribed has been found probative The Lords found that if this had been a current Compt-book it would have been probative but having been only some feu scheduls of Paper found it not probative without subscription albeit it was acknowledged by the Oath to be the deponents hand writ John Boyd late Baillie in Edinburgh contra Mr. William Kintore Iuly 4. 1665. THere being mutual Reductions betwixt Mr. William Kintore and Iohn Boyd as to the Rights of the Lands of Moutlothian Iohn Loyd deriving Right from Mr. Robert Logan to whom Logan of Coatfield with consent of Mr. Iames Raith and who for all Right he had to the Land of Mounlothian disponed the same And Mr. William Kintore having Appryzed upon a Decreet against Coatfield as Cautioner for a Tutor and upon the Act of Caution inhibited It was alleadged for Iohn Boyd that whereas by a former Interlocutor the day of he having objected against Kintor's Decreet that thereby the Tutor and his Cautioner were found lyable to uplift the Annualrent of Sums that were in the hands of secure Creditors which the Tutors had not uplifted and to be lyable for Annualrent post finitam tutelam now he produces a Decision out of Dury Iuly 18. 1629. Nasmith contra Nasmith whereby it was found that a Tutor having uplifted his Pupils Annualrent though very considerable was not lyable for any Annualrent therefore 2ly The reason of the Lords Decision then being that albeit the Tutor was not lyable to uplift and imploy the Annualrent every year as it was due yet he was lyable once in the Tutory but it is offered to be proven that he died two years before the Tutory expired in which time he might both have uplâ—fted this Annualrent and re-imployed it and therefore being prevented by death he ought to be free both of the Annualrent it self and of the Annualrent thereof The Lords having considered the Decision found it so short and not to hold forth fully the Case notwithstanding thereof they adhered to the former Interlocutor and found that Tutors are oblidged to uplift and once in their Tutory to re-imploy the Annualrents of the Pupil albeit the Debitor were secure but if the Case had been of Rents of Lands the Lords thought these ought to have been uplifted yearly and to be imployed on Annualrent but they found the second alleadgance Relevant not to free the Tutor of payment of the Annualrent it self though in secure hands because he ought to have uplifted it and had it ready but found him free of the Annualrent thereof there being a competent time in which he might have given it forth before the Pupillarity past if he had not been prevented by death but ordained Kintore to assigne to Boyd the Right of the Annualrent that he might recover the same from the Debitors It was further alleadged for Kintore that Coatfield the common Author his Disposition to Mr. Robert Logan Iohn Boyds Author was after Kintors Authors Inhibition It was answered that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior yet Mr. Iames Raith had a Disposition of the same Lands anterior who by consenting and joynt Disponing to Mr. Robert Logan the Lands of Mountlothian did in effect constitute him Assigney to his anterior Disposition which is now accomplished by the Adjudication adjudging the Right of the Lands from Coatfildâ— Heirs and thereupon Infeftment has followed by precepts out of the Chancellary for supplying Coatfilds procuratory of Resignation which took no effect in his life It was answered that Mr. Iames Raiths Right being but a Wodset his consent cannot import the transmitting of his Right albeit he joyntly Dispond seing he transmits no part of the Sums in the Wodset and therefore does no more in effect but restrict his Wodset to the remanent Lands and consents that Coatfield should Dispone these Lands to Mr. Robert Logan and so it imports but non repugnantiam and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right Which the Lords sustained Mr. Walter Innes contra George Wilson Iuly 4. 1665. INnes of Auchbuncart being pursued as Heir to his Father upon all the passive Titles alleadged that his Father was denounced Rebel and his Escheat gifted and the Defender had Right or warrand from the Donatar before intenting of this Cause The Pursuer answered non relevat except the Gift had been declared and that the Defenders Intromission had been after Declarator and the warrand but the Intromission being anterior cannot be purged ex post facto The Defender answered that as the confirmation of an Executor excluds vitious Intromission had before the Confirmation ante motam litem so the Gift and VVarrand though without Declarator purges anterior Intromission ante motam litem Which the Lords found relevant Commissar of S. Andrews contra Boussi Iuly 4. 1665. THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Fathers Testament he Suspends and alleadges his Father had Disponed all his Moveable Goods and Gear to him and so nihil habuit in bonis and offered him to prove that he was in possession of the whole Goods before his Death It was answered the Disposition was but simulat in so far as it contained a power to the Disponer to dispose upon any part of his Moveables during all the days of his life and if such a Disposition were sustained there should never be another Testament confirmed and all people would follow this course which would not only exclude the Quot but keep the Means of Defuncts in obsâ—uro The Lords in respect of the generality of the Disposition and the Clause foresaid repelled the Reason George Dumbar contra Earl of Dundie July 5. 1665. GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 merks of Tochar provided by Craigs Sisters Contract of Marriage the Earl of Dundie Suspends on this Reason that he is but lyable for his half because they were not bound conjunctly and severally The Charger answered that he was bound as Cautioner and full Debitor which was sufficient Which the Lords sustained Mackie contra Stewart Iuly 5. 1665. JAmes Mackie as Assigney by Agnes Schaw conveens Stewart of Mains as as representing his Father who was Cautioner for imploying a Sum of Money to her in Liferent It was answered First the Contract is prescribed 2ly It bears these words that the Tochar being payed The Principal and Cautioner obligded them to imploy it upon security so that the obligation is conditional And if it be not instructed that the Tochar was payed the Defender is not lyable The Pursuer answered to the first contra non valentem agere non currit prescriptio she being a VVife cled with a Husband her not pursuing her own Husband or his Cautioner cannot prescrive her Right To the second The prescription is run against the Husband and his
extended to the maintenance contained in that Act. Bessie Scot contra Somervail Eodem die BEssie Scot having charged Somervail who was Cautioner in an Suspension for payment of an Sum of Money contained in a Bond Suspended He Suspends on this Reason That the Money was consigned in the hands of Mr. George Gibson Clerk to the Bills for the time It was answered that Mr. George Gibson was now out of Office and insolvent and the Consignation behoved to be upon the peril of the Consigner It was answered that the the Consignation must be upon the peril of that Partie who was the cause of Consignation and that was the Charger in so far as it was instructed by an Instrument produced that the Suspender offered the Annualrent and so much of the Penaltie as the Charger would have Declared upon her Oath that she had truely payed which she refused unless the whole Penaltie were payed whereupon he consigned through her Fault The Lords sustained the Reason and ordained the Noltar and Witnesses to depon upon the Truth of the Instrument for Instructing thereof Dowglas contra Cowan and Russel Iuly 29. 1665. PEter Russel by his Ticket acknowledged him to have received a certain Quantity of Wine and oblidged him to make payment thereof according to the Condition agreed upon Dowglas being Assigned to the Ticket insists for the ordinary Price of Wine It was alleadged no Process for the ordinar price of Wine but only for the price agreed on which behoved to be condescended on and proven by the Debitors Oath being above an hundred pounds It was answered that seing these Conditions were not adjected the ordinary price was to be understood unless it were proven by the Debitor what they were c. that they differred from the common Price The Lords found that the Debitor by his Ticket behoved to condescend on the Conditions qui potuit legem apertius dicere and not the Pursuer but they found Witnesses might prove the condition Heretors of Don contra Town of Aberdeen Eodem die THis day Report being made concerning the Cruives of Don. The Lords found that there was no necessity to keep alwayes open a mid-stream notwithstanding the several Acts of Parliament made thereanent which upon enquiry through the Kingdom they found to be in desuetude and especially in these Cruives to be made past memory with Saturndayes stop only and ordained the distance of the Hecks to be three Inch Scots measure whereof 27. make an Elle vide supra Lady Knapeirn contra Sir Robert Farquhuar November 9. 1665. SIr Robert Farquhar being Infeft in certain Lands by the Laird of Knapeirn with his Ladies consent pursues the Tennents and obtains Decreet for Mails and Duties The Lady pursues Reduction on these Reasons that she stood Infeft and in possession eleven years after her Husbands death bona fide without any persuit and so being in judicio possessorio she was tuta reâ—â—ptione It was answered that the benefit of a possessorie Judgement was never granted to any partie in prejudice of these to whom that Party had Disponed or consented to a Disposition which includes an Obligation to possesse them nor can they be in bona fide contrair their own consent and deed to possesse The Lords repelled the Defense in respect of the Reply It was further alleadged that Sir Robert by a Declarator produced had acknowledged nothing of that Wodset due but what was contained in a fitted accompt written by him and subscribed by both Parties which did innovat the Wodset and Sir Robert could have no Right thereby but by this Compt which only could touch the Husband Secondly Albeit the Wodset did stand in so far as the Compt extends yet Sir Robert ought to have no benefit by the Wodset till he produce the Accompt It was answered that the Accompt was never in his custodie but given to Knaperin in whose favours it was introduced and seing it was clear that his Wodset was not extinct but restricted the Pursuer behoved to condescend in quantum and to prove it alliganti incumbit probatio The Lords ordained and appointed Sir Roberts Oath to be taken before answer on his having the compt and yet they sound that he ought to produce 〈◊〉 but the Interlocutor was stopt the next day Teilzifeir contra Geddes November 11. 1665. MArion Geddes having granted to Samuel Veatch a blank Bond of 2000. merks Tailzifer being Creditor to Samuel Veatch Arrests all Sums in her hand owing to Samuel she depones that she was no wayes Debitor to Samuel but by a Bond given Blank in the Creditors name and that she knew not whose name is filled up therein compearance is made for whose name is filled up in the Bond and he alleadges he ought to be preferred to the Arrester because he offers him to prove his name was filled up in the Bond and that before the Arrestment the Bond was Registrate in his name and that before the said Marion deponed he had used Inhibition thereupon which she could not but have known It was answered for the Arrester that he ought to be preferred because albeit the Bond was blank ab initio yet in rei veritate Samuel Veatch was Creditor and so he behoved to be Legaily denuded which could not be done by filling up any other persons name without intimation thereof made to the Debitor for seing a Direct Assignation was not valid without an Intimation much less should this indirect way by the Creditors filling up another name than his own in the Blank which is in effect an Assignation And seing the Lords have already found that the Debitor acknowledging that he gave a blank Bond to any person and knows not whose name is filled up in it is lyable to any Arrester albeit he be under hazard to pay again to that person who has his Bord in justice it followeth that such Bonds must be intimat otherwayes it will unavoidably infer double payment It was answered that the Law requires Intimation to Assignation as a necessary Solemnity but has not required the same to the filling up of a Blank-bond the case whereof is not alike with an Assignation because where the Bond is blank the Debitor cannot pay any thing bona fide safely till he see the Bond filled up but where he knows the name filled up he may pay bona fide to the Cedent not knowing of the Assignation It was answered that the Law did require to all Assignations Intimation but the Case of Blank-bonds was but a late invention to defraud Creditors that it might not be known who was Creditor but seing it is truly an Assignation it deserves no favour more than a Direct Assignation and so should have as much Solemnity The Lords preferred the Arrester but because the Case was a leading Case and new after a second Interlâ—cutor adhering they allowed the Advocats to offer by Bâ—ll any new Reasons and particularly if it could be alleadged that the Debitor granter of the
Trade in the River of Clyde without any such Burden whereof no mention is made in the foresaid Contract and being charged for in Anno 1611. there was not so much as an alleadgence of any Possession of Dumbartons of these Dues at that time and the Entry decerned to be free at either Town and therefore they alleadged that their Priviledge of Trading as a free Burgh ought to be declared and they assoilzied It was answered for the Town of Dumbarton that they had good Right to these Duties by His Majesties several Infeftments granted to them for the King having power to impose petty Customs not only in Ports built and preserved by Industry but in Stations and Rivers Creiks and Bays as is the Custom of all Kings and Princes such are the Customes upon the Rivers of Rhyne Garonnie Thaimes and others to all Ships that anchor there or pass that way and whereof there are severals in Scotland as the Tunnage due to Edinburgh of all the Ships breaking bulk at Leith and the petty Customs of Alloway Cockenie and other places 2ly Albeit the Kings grant were not sufficient alone yet being cled with immemorial or 40. years Possession instructed by Witnesses and the Books of Entry it is more then sufficient It was answered for Glasgow to the first That petty Duties imposed for Ports having a mutual Cause may be appointed at any time by Kings and Princes it being free to these who are burdened therewith to come in to that Port or not they also appoint petty Customs to be payed to any City for Goods Imported and sold there in consideration of the upholding of their Harbours and Mercats as the Tunage of the Harbour of Leith or anchorage at any Shore where anchorage is casten upon the Land or any Goods laid out upon the Land or where Imposition for anchorage or other Dues in a River or Station hath been approven by long Custom and acquiescence but where Burghs Royal have not only by their priviledge of Trading but by immemorial Possession prescribed a liberty of making use of Stations without burding no Right granted or Impetrat by any Party in prejudice thereof if it be quarrelled before Prescription can take away the liberty of Trading Nor is the Kings Gift any way to be understood but periculo petentis and Dumbartons second Charter did expresly bear that these petty Customs were due and accustomed before so that the Kings express meaning is not to Gift them de nova or to impose a servitude in their favours upon a far more eminent City then themselves And as to the Point of Possession nothing is proven thereanent till the year 1616. and then it is neither universal seing more Entered at Glasgow then at Dumbarton nor is it peaceable nor voluntar nor is it continual but interrupted and albeit it were uninterrupted yet it is but by single Persons which cannot infer a Servitude upon the Burgh and if the Kings Gift be periculo petentis and be surrepticiously impetrat upon a false Narrative no Possession can validat it as no Possession of it self without a Title could infer such a Servitude The Lords having considered the Depositions of the Witnesses Books of Entry and the hail Writs produced they found that the alleadgence against Dumbartons Declarator as founded upon their Charters without Relation to Possession was not Relevant and that the first Charter could not extend to these particulars not being exprest unless it had appeared that they had been in immemorial Possession before the second Charter and the interruption by the Suspension raised by Glasgow and the Lords Interlocutor thereuponâ— in Anno 1611. for albeit Immemorial or 40. years Possession immediatly preceeding might have presumed Possession continually before since the first Charter yet they found that Interruption or Suspending that particular in question and no alleadging of Possession by Dumbarton then but on the contrair an Interlocutor as to the liberty of Entry at Glasgow takes off that Prescription And likewise they found that there was nothing proven as to 40. years Possession save only 13. sh. 4. d. for the Anchorage of each Ship and 8. d. for the use of Dumbartons Measures of Salt for each Boll and seing that Possession was also proven to be Interrupted in that several Ships of Glasgow Resisted and came away free and that they had several Salt Measures of their own there Therefore they found the Charter not validat by 40. years Possession uninterrupted and Assoilzie from Dumbartons Declarator and Declared upon Glasgows Declarator of Liberty Earl of Panmuire contra Parochiners Feb. 7. 1666. THe Earl of Panmuire having Right to the Abbacy of Aberbrothick pursues for a part of the Teinds thereof It was alleadged absolvitor because they had possest their Land 40. years free of Teind to any body and by the general Act of Prescription all Right prescribes not pursued within 40. years and so doth the Right of this Teind It is answered that the Right of Teind is founded on Law and not upon any particular or privat Right and therefore albeit in the case of Competition of private Parties pretending Right to Teinds One Right may be excluded by another yet the Teinds themselves must always be due except where the Lands are decimis inclusis and did belong to priviledged Church-men of old such as the Cistertian Order or Templars Manse or Gleibs The Lords Repelled the Defense in respect of the Answer for they thought albeit the bygones of the Teind preceeding the 40. years might prescribe yet the Right of Teind could not more then Customs could prescribe if they were neglected to be Exacted for fourty years or a Feu-duty Ker contra Hunter and Tennents of Cambo Feb. 8. 1666. THe Tennents of Cambo raise a Double-poinding against Ker and Hunter both being Infeft in Annualrents base where the last base Infeftment within a month of the former being cled with Possession by a Decreet of poynding the Ground a year after both and no Diligence on the first The Lords preferred the last Infeftment as first cled with Possession It was further alleadged that this Annualrenter had accepted a part of the Land in satisfaction of his Annualrent It was answered that there was Write there required viz. a Renunciation of the rest and till that was done est locus penitentiae The Lords considering the Case found that if the Promise were only to restrict the Annualrent to a part of the Land burdened therewith it was pactum liberatorium and there was not locus penitentiae but if it was a Promise to accept other Lands or the Property of a part of the Lands burdened there was locus penitentiae till the mutual Rights were subscribed whereby the one Party disponed the Property and the other the Annualrent The Heretors of Johns Miln contra The Feuars Feb. 9. 1666. THere being an old Thirlage of a Paroch which was a part of the Barony of Dumfermling to Iohns Miln the Feu of the Miln being
VVrits were sufficient cled with many years Possession in the Defuncts time who never challenged the same 2ly They are Established by the Seasine given propriis manibus conform to the Obligement of the Disposition and Charterby a Town-clerk Registrat in the Town Books The Lords having Ordained the Defenders to condescend upon any Adminicles they had for astructing the verity of the Subscription they condescended only on seven years Possession which the Lords found was not sufficient to Establish the Right without Reduction but if the Defender had condescended on 40. years Possession The Lords Declared they would hear them Dispute whether that could be sufficient or not Chalmers contra Bassily Iune 30. 1666. MR. William Chalmers being to go abroad grants a Factory to Bassily bearing to endure untill he returned and after Discharged the same in VVrit he now writes a Letter to his Father bearing That he would do any thing he could to recal and reduce that Factory whereon a Reduction was raised on this Reason That all Factories of their Nature are Revockable at the pleasure of the Constituent albeit they contain a Term of endurance It was answered that this Factory containing such an endurance cannot be Revocked till the Term come 2ly Albeit Factories be Revockable yet it must be re integra but here the Factor hath advanced considerable sums of Money upon consideration of the Factory The Lords found the Factory Revockable the Factor being always refounded of what he profitably Expended upon consideration thereof before he quite Possession Martin Stevinson contra Dobbie Eodem die DObby being Tennent to Iames Stevinson of certain Lands he gets an Infeftment of Annualrent out of the same Lands before Whitsonday but the first Terms payment of the Annualrent was Martinmas thereafter after Whitsonday and before Martinmas Martin Stevenson apprizes the Land and Charges the Superiour and thereupon pursues for Mails and Duties Dobby excepts upon his Infeftment of Annualrent The Pursuer answered that the Infeftment was base and before it was or could be cled with Possession he had Charged the Superiour which was equivalent to a publick Infeftment The Defender answered that a publick Infeftment interveening before the first term of payment of the Annualrent did not prejudge the base Infeftment which could not be presumed to be privat or simulat for want of Possession till the Term came at which Possession might be attained or pursued for 2ly The Defender being in Natural Possession from the very Date of his Seasine intus habet and he may retain his own Annualrent which begins to become due from the Date of his Seasine de momento in momentum albeit there be a Term appointed to pay accumulative so that as the getting payment from the Possessor of any part of the Annualrent or his Obligement for the same would be a Possession sufficient so the Defender having the same in his own hand as Possessor it is equivalent The Lords found this Member of the Defense Relevant and had no necessity to decyde the other Point whether the interveening publict Infeftment before the first Term would exclude the base Infeftment without Possession wherein they thought that there was great odds if the Appryzers Infeftment or Diligence had been before Whitsonday in respect the first Term of the Annualreni was not the next Term after the Seasine and so if it might pass one Term by the same Reason it might pass ten Terms and be valid because in neither Case could Possession or Action proceed thereon and therefore might be suspected of Simulation so that if the Appryzers Diligence had been before Whitsonday the Annualrenter could have no Right to that Term and so the Appryzer would attain to the Possession and could hardly be excluded thereafter Stevin contra Boyd Eodem die STevin pursues his Mother as his Tutrix and Iohn Boyd as Husband and Factor for an Accompt of his Fathers means In which Accompt these Points were reported First There was some old unfashionable Ware in the Defuncts Inventar not Sold whereof the Tutrix offered to the Pursuer his two third parts in specie The Pursuer answered that the Tutrix had priced the same and behoved to accept them at that price and that she ought to have done Diligence to have Sold them and Executors are never liberat but upon payment of the price The Lords found that albeit Executors are comptable to Creditors always for the price yet not so to the Children and therefore if it was visible that the Ware was old and could not be Sold wherein the Tutrix was at the loss of her Third They found the same should be accepted but in that Case they found the Tutrix lyable for any greater price she got then that contained in the Testament The second point was what Diligence the Tutrix should be lyable for whether Registrat Horning were sufficient or if Poinding and Apprizing behoved to be used The Lords found that Horning would not be sufficient in all Cases but according to ehe Condition of the Debitors and therefore ordained the Parties to condescend thereon Fleming contra Fleming Iuly 3. 1666. DAm Elizabeth Fleming being Executrix to her Husband and Tutrix to her Children gave out the sum of 6000. merks to the Lord Cardross and took a Bondâ— bearing the same payable to her self in Liserent and to Malcolm and Andrew Flemings and failzing the one by Decease to the other This Bond by a former Interlocutor was found not to be altogether a Donation but it satisfied the two Bairns Portions pro tanto Malcolm being now dead Andrew the surviver claimed the sum by the Substitution Thereafter the Children as Executors to Malcolm claimed the same on this ground that this sum not being found a Donation but to be given in satisfaction of of Andro's Portion the Tutor could not Substitute any Heir to Malcolm but behoved to remain as it had been lent as Malcoms own means in which case it would belong to his whole Brethren and Sisters and not to Andrew only Andrew all eadged that he being Substitute by his Mother who had now Right from the remanent Children she who had Constitute this Substitution could never quarrel the same It was answered for the Mother that she did not quarrel the Substitution but that albeit the Substitution took place Andrew was her Substitute and so was in the same condition as Malcolm so that Malcolms half behoved still to be taken away by Compensation in so far as she was Creditor to Malcolm as if Malcolm were alive It was furder alleadged for Andrew that in such a Clause as this there was no Fiar and Heir but two conditional or alternative Fiars viz. either of the Children that Survived and therefore such Clauses would never make the Substitute Heir to represent the Defunct and be lyable to his Debts The Lords found that by the Clause of Substitution the Person Substitute was Heir of Provision yet not so as to be lyable to the
The Creditors alleadged that the assignation being in the hands and custody of Mr. Alexander the Granter it must be proven by Writ he being dead that it was delivered and not by Witnesses for there is nothing more frequent then Parties upon intentions to subscribe Bonds Assignations and other Rights and yet do not de facto deliver them or if they have been delivered to satisfie them and retire them and if Witnesses were admitted to prove the delivery or redelivery of such Writs the Lieges would be in extream unsecurity contrary to our Law that admits not Witnesses above an hundred Pounds and therefore Chirographum apud debitorem repeatum praesumitur solutum which presumption cannot be taken away by Witnesses The Pursuer answered that though this holds in Bonds where there is a Debitor and no other adminicle to instruct the Debt yet this is an Assignation and the Cause thereof otherwise instructed and most likely to be truely done and it is offered to be proven that this Assignation was delivered back to Mr. Alexander to be made use of as Agent for the Pursuer The Lords refused to sustain this Member of the Probation but because of the poverty of the poor Woman recommended the case to the Creditors to be favourable to her and did forbear to write the Interlocutor Hay of Knockondy contra Litlejohn Eodem die HAY of Knockondy pursues Litlejohn for the damnage sustained by him by the fall of Litlejohns House called the Tower of Babylon whereby the Pursuers House adjacent was broken down The Defender alleadged First The Libel was not relevant unless he had been required to find Caution de damno infecto as is required by the Civil Law whereby if that Caution were not required there is an express Text in the Title de damno infecto that there shall be no Action but the Party shall impute his loss to his own negligence Likeas we have two special Statutes concerning ruinous Houses which prescrive the method of preserving them and making up the damnage none of which being followed the Defender is not lyable 2ly Whatsoever might be alleadged against the Heretor of the said House the Defender is only an Appryzer of a Liferent-Right for a small Sum and the Liferenter was not obliged to repair a Tenement manifestly ruinous that could not be preserved but with great Expence and Rebuilding much less the Appryzer who hath but a small Sum on it The Pursuer answered to the first Defense that his Libel was most Relevant Damnage upon any fault being due and Reparable by the Law of Nature and as for the Civil Law it hath no Effect with us in this point our Custom neither giving nor requiring such Caution much less refusing Action if it be neglected and as to our own Statutes though they be very convenient wayes for securing of damnage yet they are not exclusive nor have they any Clause except in these Cases and in that method Damnage shall be irrecoverable To the 2d it was answered The Pursuer was not obliged to know or enquire whether the Defender was Heretor or not but he finding that he was a Neighbour behaving himself as Heretable Possessor by uplifting the Duties he did pursue him and if need beis offers him to prove that he did require him to keep him skaithless though he took no Instrument thereon The Defender answered that he was not obliged to take notice of such Requisitions not being Solemn by Instrument The Lords found the Defender lyable albeit there had been no Requisition verbal or otherwise it being proven that the Ruinousness of the Tenement that fell was notour and manifest to the Defender himself whereby he was obliged either to demolish the House if it was not Reparable or to have quite his Possession to evite the imminent damnage of Neighbours Lord Colvil contra Feuars of Culross Decemb. 15. 1666. THe Lord Colvil as Heretable Bailzie of Culross having Charged the Lord Kincairn and others for the Taxation of their Lands in Culross conform to the stent Roll They Suspended and alleadged that the stent Roll contained a fifth part more then the Taxation It was answered and offered to be proven that it was the Custom of that and other Benefices at their meeting of making the Stent-roll to add a fifth part for Expenses and Charges of ingathering the Taxation The Defenders answered that if any such Custom were it was against Law and against the Liberty of the Subject who could be lyable for no payment but by Law or of their own consent or if any such Custome were it hath been by the consent of the Vassals or at least they have not questioned the same nor is there any ground for such an addition for the Kings Officers being obliged by their Office to Collect His Majesties Taxations they can demand nothing of them who payed without Process and if they be put to Process the Lords will modifie such Expences as they see cause The Charger answered That such immemorial Customes have the strength of Law and that it was done with the consent of all the Vassals who conveened and that it was the Suspenders fault that they conveened not to make the stent Roll which should not put them in better case then they had conveened or if they had conveened and disassented there is no reason that the dissassent of a few should be preferred to the consent of the most part who as they may Vot in the stent Roll for the Taxation it self in which the plurality carries so must they for the necessary Expences and all that can be alleadged with reason is that the Lords may modifie the Expences of a fifth part if it be too high The Suspenders answered that Law authorized the Feuars as a Court and Judicature to meet and stent which implyes a power to the Plurality but there is no such warrand for Expences as to which the consent of a hundred cannot oblige the dissassent of one or of one absent and the absents have loss enough that they have not a Vot in their own Stent The Lords sustained the Reason of the Suspension notwithstanding of the answer and found that no Expences nor any thing more than the Taxation could be stented to have effect against these who consented not but they would modifie Expences in case of Suspension as the Cause required but modified none in this case because a fifth part was Charged for more then was due Lord Newbeath contra Dumbar of Burgie Decemb. 18. 1666. THE Lord Newbeath having right from Iames Mcken who had appryzed the Lands of Burgie pursues Reduction and Improbation against young Burgie and Iohn Watson and insists on this Reason that any Rights they have are null and fraudulent being Contracted after his Debt and the Right granted to young Burgie is null as being but a base Infeftment not cled with Possession before the Pursuers publick Infeftment The Defender alleadged that his Infeftment was cled with Possession in so
have been used at the Old Paroch Kirk and particularly by the Defender himself The Lords Repelled the Defense simply unless the Erection were alleadged as aforesaid and found in that Case the Reply Relevant to elide the same Earl of Argile contra George Campbel Ianu 25 1667 THE Earl of Argile insisting in the Removing against George Campbel It was alleadged no Removing because the VVarning was null not bearing to have been Read at the Kirk Door either at the time Divine Service uses to be or at least before Noon It was answered that the VVairning bore that the same was affixed on the Kirk Door and lawfully Intimat there which does import the lawful time of the Day 2ly The Pursuer offered to mend the Executions at the Bar and abide by it as so done It was answered that the Defender accepted the Executions as produced after which they could not be amended and that lawfully could not supply that Speciality otherwise if the VVarning had only born that the Officer had VVarned the Party lawfully it would have been enough The Lords admitted the Pursuer to amend the Execution he biding thereby and Ordained the Defender to see the same Hercules Scot contra Gibb Ianuary 29 1667. HErcules Scot having given his Horse to John Gib Stabler in Brunt-Island to be kept pursues Gibb for the price of his Horse The Defender alleadged Absolvitor because he having put out the Horse to the Grass it being in the Month of July the Horse fell over a Rock and brake his neck and the Defender is not lyable pro casu fortuito It was answered that the Accident was by the Defenders fault because he put the Horse to Grassing above the Craigs of Brunt-Island and caused ty his Head and Foot together 2ly It is offered to be proved by Witnesses that the Pursuer directed him to keep the Horse in the Stable at hard Meat and not to put him out to Grass The Defender answered that he was not in culpa because he had put out the Horse in a place where ordinarly other Horses were put out and had tyed him no other way then the rest of the Horses 2ly The Command to keep is only relevant to be proven scripto vel juâ—amento and the emission of words without any Fact is not otherwise probable The Lords found the Defense and Duply Relevant to elid the Summons but found the Reply and Triply Relevant to elide the same and found it Probable by Witnesses in respect it was a part of the Bargain betwixt the Pursuer and the Stabler Henderson contra Henderson Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson whereby he appoints the said Allan to be his Heir and Donatar to all his Lands and Estate and assigns him to the Rights and Evidences thereof with power to Enter by the Superiour But in the Narrative it bears the ordinar Narrative of a Testament and has a Clause subjoyned to all in case of his Return he may alter and annul the same there having nothing followed in his Life The said Allan pursues Henderson his appearand Heir to fullfil the former Writ and to Enter Heir and Resign in his favours conform to the meaning thereof The Defender alleadged Absolvitor First Because this Writ is no Disposition but a Testament or a Donation mortis causa in which no Disposition of Land can be valid 2ly Albeit this could be a Disposition yet it is not done habili modo there being no Disposition of the Right of the Land or any Obligement to Infeft neither can a Person be Constitute Heir but either by Law or Investiture or at least by an Obligement to grant Investiture 3ly This being donaâ—io mortis causa expresly Revocable by the Defunct at his return it is ambulatory and conditional Ita est he returned and granted Commissions and Factories whereby his mind appeared to be changed The Lords Repelled all these Alleadgances and sustained the Summons because though the Writ was unformal yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer to take effect after his death and albeit he returned seing he did no Deed to annul or recal this Writ this was effectual against his Heir to compleat the same Creditors of Sir James Murray contra Iames Murray Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber containing a Clause of Requisition and Reversion on payment at London the Lands being Appryzed by Sir Iame's Creditors they having the Right of Reversion did use an Order at Edinburgh against Iames Murray as now having a Right to the Wodset and pursue a Declarator The Defender alleadged Absolvitor because the Order is not conform to the Reversion which is strictissimi juris and behoved to be done at London It was answered the place being adjected in favour of Iames Livingstoun who resided at London The Pursuers have done more having consigned at the present Wodsetters Domicile London being only appointed as it was the former Wodsetters Domicile wherein he hath benefit and can have no detriment It was answered he was not obliged to Debate his detriment for if his Money were in London he would get six of the hundreth of Exchange to Scotland The Lords sustained the Order the Pursuers making up what should be modified by the Lords for the Interest of the Wodsetters Earl Tullibardine contra Murray of Ochtertyre Eodem die THe Earl of Tullibardine having Wodset the Lands of Logie-Almond to Murray of Ochtertyre he did thereafter Discharge the Reversion and at that same time got a Back-bond bearing That for payment of 56000. merks with all other sums that should happen to be due to him by Tullibardine and all Expenses that he should Dispone the Lands back to Tullibardine or the Heirs or Assigneys of his own Body but with this provision that if he were not payed before Martinmass 1662. the Bond should be null without Declartor Tullibardine premonishes and after Premonition Dispones the Lands to Sir Iohn Drummond and they both joyntly Consign and now pursue Declarator It was alleadged for the Defender Ochtertyre First No Declarator upon this Order because the Back-bond is Personal to my Lord and to the Heirs or Assigneys being of his Body so that Sir John Drummond nor no Stranger can have Right thereby to Redeem 2ly The Back-bond is extinct and null by committing of the Clause Irritant in so far as payment has not been made before 1662. The Purswer answered to the first that albeit the Reversion had been Personal to my Lord only excluding his Heirs and Assigneys yet my Lord in his own Lifetime might Redeem and being Redeemed the Right would belong to any to whom my Lord had or should Dispone 2ly This Clause Irritant is pactum legis commissoriae in pignoribus which by the Civil Law and our Custom is void at least may be still purged
of the second must approve both and the approbation is sufficient Warrand for him to intromet and the Auditors to compt with him The Lords Repelled the Defense upon the Act of Indemnity in respect of the foresaid Exception contained therein and likewise found that the Oath subjoyned to the second accompt could not exclude the Pursuer from insisting for the Defenders Fathers intromissions ommitted out of the first accompt and wherewith he Charged not himself but found that the Defender was secure by the Act of Indemniâ—y so far as he had charged himself with and compted and found that he was not obliged after so long a time to instruct his Commission or the Warrand of the Auditors that fitted his accompts but that the approbation was sufficient to astruct the same Lady Diana Maxwel contra Lord Burley and others Feb. 15. 1667. LAdy Diana Maxwel Lady Cranburn and other Executors confirmed to the Countess of Dirletoun pursued the Lord Burley as Representing his Father for payment of a Bond granted by his Father and others to the umquhil Earl of Dirletoun for the price of a great quantity of Victual and that upon these Grounds that the Pursuers are Executors surrogat to the Countess and have licence to pursue which Countess had an assignation from the Earl to his Houshold-stuff which bore this general Clause And to his Chattel and other Moveable-goods and Gear whatsomever under which generality this Bond is Comprehended being moveable and for Victual and so is a Chattel as the word is understood by the Law of England whereby all that is not by Infeftment of Fee is comprehended by the word Chattels and belong to the Executors as Laisses c. 2ly The Countess was nominat universal Legatrix in the Earls Testament and thereby has Right to this Moveable-bond 3ly As Relict she has Right to the half It was alleadged for the Defender no Process upon any of these Titles First Because the assignation cannot be extended to this Bond neither is the word Chattels to be Interpret according to the Law of England the assignation being made by a Stots-man and made in Scotland after the Scottish manner 2ly The Pursuers as Executors to the Countess cannot pursue upon the universal Legacy the Debitors of the Defunct but only the Defuncts Executorsâ— because this Bond is yet in bonis primi defuncti and must be Confirmed 3ly The Relict cannot pursue the Debitors for her half but at least she must call the Executors The Lords found both the last Alleadgences Relevant but as to the first before answer they ordained the Pursuer to adduce what Evidences they had to instruct the signification of the word Chattels by the Law of Englâ—nd in respect it was notour to them that the Lord Dirletoun beìng a Servant of the Kings lived the most part of his time in England and in Scotland there is no use of the word Chattels Isobel Glen contra Iohn Hume Feb. 19. 1667. ISobel Glen as assigney by Mr. Edward Jameson having obtained Decreet against the umquhil Earl of Hume for certain by-run Stipends and thereupon having arrested in my Lord Whitekirks hands certain Sums due by him to the Earl of Hume She now pursues to make forthcoming Compearance is made for Iohn Hume who produces an assignation by the Earl of Hume to the sums due by Whitekirk and also produces a Gift of the Earls Liferent-Escheat and alleadges first No Process at the Arresters Instance because the Earl of Hume being dead the Debt must be first Establisht by a Decreet against one Representing him who must be called principaliter before the Person in whose hands the arrestment is made can be decerned to pay that which was the Defuncts 2ly Iohn Hume must be preferred as Donatar because the arrestment was laid on after the Earl of Humes Rebellion by which his Goods belonged to the King and no Sums can be made forth-coming as belonging to him after the Rebellion because they belonged to the King It was answered to the first That if the Earl of Hume had not dyed at the Horn the Pursuer would have either Confirmed as Exâ—cutor Creditor or called the Earls Executors but that is not necessar seing the Earl died at the Horn and could not have one to Represent him in mobilibus and that now the Donatar who succeeds compears To the 2. the Pursuer as Arrester ought to be preferred because albeit the arrestment be after the Rebellion yet it is before the Gift or Declarator and it is for a Debt due by the Earl before the Rebellion and so doth exclude the Donatar for which they produced a Decision marked by Dury Pilmour contra Gaigie In which case the Gift was granted by a Lord of a Regality having the benefit of the Escheat whereanent the Lord Advocat Represented that this could not be drawn in consequence to prejudge the King or his Donatar because the Lord of Regality being a Subject debuit invigilare sibi by declaring the Rebellion without delay but the King cannot so soon know nor is he prejudged by the neglect of his Officers Yet the â—ords uâ—animouslie preferred the Arrester the Advocat forbearing to Vote for they tâ—â—ught the câ—se of Creditors for Debts before Rebellion were not to be prejudged â—â—â—ng Diligence before Declarator or if they should Poind Arrest Adjudge c. Cranstoun contra Wilkiâ—on Feb. 20. 1667. BY Contract of Marriage betwixt Wilkison and his Spouse he is obliged to Infeft her in a Tenement exprest therein and in all the Conquest during the Marriage which Infeftments were to be taken to them the longest liver of them two in Conjunct-Fee and their Heirs betwixt them Which failzing to the Heirs of the Mars Body Which failzing to the Wifes Heirs whatsomever after which the Husband purchâ—sed a piece of Land but took the Infeftment thereofâ— to him and his â—ife and the heirs betwixt them Which â—ailzing to his own heirs whatsomever omitting the wifes heirs This Cranstoun obtains hiâ— self Infeft in this Conquest Tenement as Heir to the Wife and thereupon obtained Decreet for Mails and Duties Wiâ—â—ison as Heir to the Husband pursues Reduction of the Decreet on these grounds first That Cranstouns Infeftment as Heir to the Wifeâ— was null because the Wife was not Fiar but Liferenter 2ly The Wife having accepted of an Infeftment posterior to the Contract without mention of her Heirs that innovat the Provision of the Contract and excludes her Heirs It was answered first That the Man and Wife being Conjâ—nct fiars the Wife was Fiarâ— and the Man but Life â—enter because the last Termination of Heirs whatsomever Terminat upon her 2ly Albeit Cranstoun had taken his Infeftment wrong Wiâ—kison cannot quarrel the same because he as Heir to Wilkison was obliged to Infeft him as Heir to the Wife and to the posterior Inâ—eftment it is contrair to the provision of the Contract of Marriage and there does appear no accepting thereof by the Wife 3ly Cranstoun is
answered that Inhibitions are personal Prohibitions Restraining the Person Inhibit and the Leiges to Alienat Buy or Sell any Lands in prejudice of the User of the Inhibition and until he be satisfied of the Ground thereof Which Prohibition respecteth the Person Inhibit directly and the Lands but indirectly as they belong to him so that there is no difference whether they belonged to him before or after for hoc ipso that they are his they fall under the restraint and the alienation thereof is to the prejudice of the User of the Inhibition because if they were not Sold they might Appryze the same so that albeit he be not in worse case then he was the time of the Inhibition yet he is in worse case then he would be if the Land had not been sold And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom that infers not but they might and that they would be effectual to Lands thereafter acquired in these shires neither is there any ground to except the Renuncing of Wodsets which are Alienations of the Wodset Lands but the Redeemer before he declare or deliver the Money and take Renunciation he ought to search the Registers and to call these persons who have used Inhibitions for their Interests The Lords found that Inhibitions reached to Lands acquired after the Inhibition but were not clear that Inhibition hindred Renunciations of Wodsets but superceeded to give answer to that Point till the first of June Laird of Dury contra Anna Gibson Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters for twenty thousand Merks of portion a Piece and in case of Decease of any of them her Portion to belong to his Heir-male but upon the Margent there is added that the Portion of the Deceasing should accresce to the Survivers This Dury Brother and Heir-male pursues Reduction and Improbation of this Bond in so far as concerns the Marginal addition upon these grounds that the samine was not Subscribed before the Witnesses insert in the Bond nor insert at that time And that it is written by another Hand then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond and that the Bond bears that the Date and Witnesses are insert by Dury himself yet it does not bear that he insert the Marginal addition which is of greater importance It was answered that Bonds being Subscribed before Witnessâ—s their Testimony reaches not only to the Subscription on the foot but to the Subscription of joyning the Sheets and whole Marginal additions which are as valide as any part of the body unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed and albeit the Marginal addition be of another Hand it is offered to be proven that it is the Hand-writing of Dury himself who insert the Date and Witnesses which is more Solemn then any other writer especially seing the writer was not present or witness but only drew the draught of the Bond and albeit he mentions not the inserting of the Marginal addition but only the inserting of Date and VVitnesses that has been because of the ordinar Stile of Bonds whereof the Date and VVitnesses are filled in by another Hand not being ordinar for these to write Marginal additions and as for the importance or contrariety of the Margent to the Body that is most ordinar especially where the body is but a draught drawen by another Hand who has erred in his intention in the Substitution it was answered for the Pursuer that albeit the Marginal addition should be proven to be Holograph yet unless it were proven to have been truely written and subscribed at the Date of the Bond. It cannot prove that it is of the same Date or of any Date before the Defunct was on Death-bed and so it is null and cannot prejudge the Pursuer as Heir especially seing the Defunct having then no Sons might probably adject this in favours of his Daughters contrair his former Intention which if it should take effect would ruine the Heir-male The Lords having taken the Deposition of the Witnesses insert and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no and that it did appear by inspection that the Marginal addition was by another Hand then that that wrote the body and that it was not mentioned at the conclusion where the Defunct exprest that he himself was Filler up of the Date and Witnesses and nothing was adduced to astruct that it was of a true Date before his taking Bed Vpon all these considerations joyntly the Lords found that the Marginal addition was not of the Date of the Bond and that having no Date of it self it was not instructed to have been done before the Defunct was on Death-bed and so was null as to the Heir but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition but only that all joyntly was sufficient the matter being also accorded amongst the Parties Antrobus contra William Anderson Provost of Glasgow Iune 13. 1667. WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow the Messenger having therewith taken Herbertson in his own House and having required William Anderson present Provost to Concur and put him in Prison and he refusing pursues now the Provost for payment of the Debt The Defender alleadged first that the Lybel was not relevant because it did not subsume that the Rebel was showen to the Defender 2ly The Defender was required at an unlawful time being betwixt eleven and twelve at night 3ly The Defender offered the concourse of the Town Officers 4ly The Army being come to Glasgow that night the Provost was taken up at the time he was required with the ordering of their Quarters which being a publick Service of greater Importance he offering of the Officers was sufficient 5ly This subsidiary Action being but for the Pursuers damnage he can pretend none because the Rebel was Bankrupt and insolvent long before and he was Incarcerat within some few dayes where he remained a long time during which the Pursuer might have Arrested him and the Defender yet offers to put him in Prison in as good case as he then was The Pursuer answered that his Lybel was most Relevant because the Letters being directed to Provost and Bailies of Burghs and if they be required albeit the Rebel be not in their sight they must go with the User thereof to any place within their Jurisdiction which they must do in their own persons and it will not be sufficient to send their Officers and as to the time of requiring any time that men do use to go about their Affairs is sufficient and the Defender was required between
bare no Annualrent The Lords found that the Tutor behoved to have a competent time to uplift and Re-imploy these Sums for which they allowed him a year and that he was lyable for Annualrent after that year 2ly How soon a Tutor was obliged to do Diligence to uplift his Pupils Means so that if the Debitor became Irresponsable the Tutor was lyable The Lords found that if the Pupils Sums were in the hands of Debitors unquestionably Solvendo the Tutor was not obliged to lift the same unlesse the condition of some of the Debitors or Cautioners became worse at which time he was obliged to do all Diligence for uplifting the sums unlesse the Debitors became to be known to be altogether broken upon a sudden which he could not foresee 3ly VVhat Diligence a Tutor was obliged to do whether Horning was sufficient or if Captionâ— Poynding and Appryzing were necessary The Lords found that in different Cases different Executions were requisite viz. If the Debitor were known to have Lands appryzable or Goods poyndable or Sums arrestable that the Tutor was obliged to do Diligence accordingly and if not to use personal Execution 4ly Whether the Tutor should have allowance of such Sums as he payed without Sentence The Lords found such sums allowable unless a competent Defense could now be proponed which was known and probable to the Tutor at the time of payment Iohn Watson contra Iames Law Iuly 12. 1667. JAmes Law having Disponed certain Lands to Iohn Watson with absolute warrandice and after the Disposition there being a Designation of a part of the Land for Horse and Kines Grasse to the Minister conform to the Act of Parliament 1661. Watson pursues for Warrandice upon that distresse The Defender alleadged absolvitor because the distresse is by a subsequent Law falling after the Disposition It was answered first That absolute Warrandice does even take place in the case of a subsequent Law at least in so far as the Pursuer suffers detriment because if the Lands had continued the Defenders had been so burdened and therefore is lyable in quantum lucratus est 2ldy This is no supervenient Law because the Act of Parliament 1661 Is a Reviving of the Parliament 1649. which being Rescinded in the said Parliament 1661. By a posterior Act thereof concerning Manses and Gleibs is declared to be valid as if it had been made in the year 1649. It was answered to the first that nothing can infer Eviction or Recourse but that which had a Cause anterior to the Warrandice unlesse it had been otherwise exprest Nor is it any ground that if the Disponer remained Heretor he had been lyable otherwise all other supervenient Burdens would Return not only upon the Immediat but upon all the Disponers but all such accidental Superveniencies are upon the Purchasers hazard as well as the Advantages are to his benefit To the second the time of this Disposition the Parliament 1649 was Rescinded and the new Act was not Enacted Neither by the new Act is it declared to be effectual from the year 1649. As to the Horse and Kines Grasse but only as to the Manse It was answered that was but a mistake of the Draught of the Act of Parliament there being no Reason wherefore it should be drawn back as to Manses more then to the rest but it was the meaning of the Act of Parliament to Revive the former Act in all points It was answered that the meaning of Acts of Parliament may not be extended contrair to the words neither can any thing be supplyed that is omitted in a Statutory Act. The Lords found no Recourse upon the Distress arysing from the Act of Parliament 1661. and that the drawing back thereof being expresly as to Manses which is adjected as a limitation could not be extended to the Ministers Grass which is statute in a different way in this then in the Act of Parliament 1649. From this the Heretors are only to pay twenty pounds of Money and in the former Lands were only to be designed therefore found the Distress that being by a supervenient Law that the Warrandice did not reach thereto Margaret Scot contra Sir Laurence Scot. Iuly 14. 1667. SIr William Scot of Clerkingtoun having granted Assignation to his Daughter Margaret Scot of a Sum due by Wauchtoun Pursues Sir Laurence his Son as Haver to deliver the same It was alleadged for the Defender that there was a Clause in the Assignation reserving a power to Sir William to alter and Dispone during his Life and that he did Assign this Bond to Iohn Scot. It was answered that he took a Back-bond from Iohn Scot bearing that the Assignation was granted in Trust to this effect only that Iohn Scot should do diligence thereupon It was answered that the Back-bond bears Iohn Scot to be obliged to denude in favours of Sir William Scot his Heirs and Assigneys whereby the Assignation is altered The Pursuer answered that there appears nothing of the alteration of the Defuncts mind more then if he had appryzed in his own name whereby the Bond would have been adjudged to him his Heirs and Assigneys which is no more then if an Assigney should use the name of the Cedent which would no ways infer that by adjudging Land to the Cedent and his Heirs they pass from the Assignation The Lords found no alteration in the Pursuers Assignation by the Right made to John Scot in his Back-bond which also bare the Right to John Scot was made to do Diligence and for no other end Mr. John Eleis contra Elizabeth Keith Mary Steuart and Keith Iuly 16. 1667. THis Cause at the Instance of Mr. Iohn Eleis against Keiths being Dispute the twenty seventh of February last The Lords found Inhibitions to reach Lands Acquired after the Inhibition but superceeded to give answer to that Point whether the Inhibitions were to be extended to take away Renunciations of Wodset Lands which being now Debated It was alleadged that an Inhibition could not hinder the Granter of a Wodset to pay his Debt and accept of a Renunciation from the Person Inhibit because a Renunciation is but a Discharge and Inhibitions were never found to take away Discharges of Heretable Bonds nor to hinder any Party to pay their Debt but on the contrair It was an universal Custom over all the Kingdom that Debtors should pay their Debts and did accept Discharges and Renunciations without looking into the Registers which hath been most frequent not only in Wodsets but mainly in Infeftments of Annualrent upon Heretable Bonds which no man ever doubted to pay till he searched the Registers of Inhibitions et communis consuetudo pro lege habetur It was answered first That the Inhibition bears expresly a Prohibition to grant Renunciations but no Prohibition to grant Discharges and as to the Custom it cannot be showen that persons did pay Wodsets and take Renunciations from these that were Inhibit much lesse that the Lords by their Decisions did approve
in Enemies Goods or Counterband Goods or the return of Counterband Goods Parkman raised a Reduction of this Decreet on these Reasons first That the Crown of Sweden not only being an Allie to the King but having a Solemn Treaty with him in the second Article whereof it is specially agreed that the Subjects of Sweden having Passes from the Governour of the City or Province where they Louse or from the Colledge of Trade bearing that Faith had been made that the Ship men and Goods did belong to the Swede and none other and that they had therein no prohibit Goods that such a Passe being shown in any Ship there should be no further search or inquiry in the Men or Goods the like whereof is granted to the Kings Subjects either King trusting the Governours of the other in that matter by which Treaty also Counterband Goods are determined amongst which Tar or Stock-fish are no particulars ita est Parkman had a Passe when he Loused from Sweden conform to the Treaty likeas there is a second Passe sent over-land to him when he Loused from Amsterdam to France which being shown to Captain Allan at the seasure he ought not to have taken him or enquired any further nor can he now make it appear that Parkman hath transgrest the Treaty and as to the three Men of his Company one was hired in Denmark and two in Holland upon necessity so many being wanting of his necessary Company by Death or Absence there so that what he did of necessity and not to advance the Interest of the Kings Enemies can be no Delinquence 3dly Whatever might have been alleadged against him if he had been taken with Enemies Goods Aboard or with Counterband Goods which are such by the Swedish Treaty yet he was seased having none of the Goods Aboard nor the product thereof but of his Fraught and upon the accompt of his Owners in Sweden he could not be Pryze because there is nothing in the Treaty bearing that Ships should be Pryze not having actually in them Enemies Goods nor Counterband Goods but the product or return thereof neither doth it appear that he sold any Tar in France for the Entering of the Tar or paying Custom will not necessarly Import it was sold but his Factor might have unwarrantably put up that Article which being wholly inconsiderable he did not contravert and by the same papers taken Aboard it did appear that at his Lousing from France he had the same quantity of Tar which was inconsiderable and necessar for the use of his Ship being an old Ship and two Barrels was found Aboard when she was taken and some part behoved to be allowed for the use of the Ship so that at most there could be but one or two small Barrals of Tar sold which is inconsiderable and could be no ground for declaring an Allie Pryze nam de minimis non curat lex and as to the Stock-fish or any Commeatus or Provision quae habent promiscuum usum in bello pace they are only Counterband when they are carried in to relieve a beseiged place or to these that could not subsist without them according to the Reason and Opinion of Grotâ—us de jure belli lib. 2. cap. de his quae in bello licent It was answered for Captain Allan that the Reasons of Reduction ought to be Repelled because albeit Parkman got a Passe from Sweder conform to the Treaty and according thereto came from Sweden to Denmark in which Passage he was not challenged but having engadged in Denmark to serve the Danes then the Kings Enemies he did unquestionably carry merces hostium from Denmark to Holland and eight or nine Last of Tar which is Counterband beside the six Barrels of Tar carried from Holland to France and Entered and sold there and the Stock-fish and albeit Tar be not enumerat as Counterband in the Swedish Treaty yet it is comprehended in the general Clause of alia instrumenta bellica for there is no more eminent Instrument of War not only for shipping but for all Engines of War and suppose that by the Swedish Treaty Tar were not Counterband yet that Treaty can be only extended to the Subjects of Sweden Trading to and from Sweden but not to Warrand them to carry these things which de jure communi are Counterband from any other Countrey then their own to the Kings Enemies so to partake with the Kings Enemies to his Detriment And as to the second Passe send to Holland it is no ways conform to the Treaty but is most grosse and inconsistent bearing not only the Ship to belong to the Swedes but also all the Goods input or to be input in her to belong to them and to be free Goods without expressing any particular as to the return of Enemies Goods or Counterband Goods that it is a ground of seasure being the immediat return and the Captains Commission granted by the Admiral bearing so much expresly and the Instructions given by the Council in a former War anno 1624. which were sufficient Warrand for the Captain to sease and are founded upon evident Reason viz. That the Kings Allies are Neuters having assist his Enemies with Counterband Goods it is a Delinquence deserving that the Delinquent should be seased as an Enemie at any time and yet the Kings Commission hath mitigat it only to be in the return of that same Voyage wherein the Counterband Goods were carried for if an Allies Ship having Counterband Aboard were taken in her Voyage to an Enemies Port she might more reasonably pretend that intention was alterable and no Crime until actually she had Disloaded in the Enemies Port but could have no pretence if she were waited till immediatly after she came out of the Port although then the Enemies Goods or Counterband Goods were not Aboard The Lords upon a part of this Debate having formerly written to my Lord Secretary to know the Kings mind whether the Swedes by their Treaty might carry from other Countreys that which was de jure communi Counterband albeit not Counterband by their Treaty his Majesties answer was negative whereupon the Lords proceeded to consider whether Tar was Counterband de jure communi they found it was but did not find the Stock-fish Counterband except in the case of a siege to which point Secretary Morish Letter was produced in relation to the Custom of England and having also considered the Proclmation of War in which there is no mention of returns but only a Warrand to sease Ships belonging to Enemies having in them Enemies Goods or Counterband Goods and having also considered the Admirals Commission which extends only to the return of Counterband Goods and not to the return of Enemies Goods and it being offered to be proven positive that by the Custom of England no seasure is sustained upon returns but only when Enemies Goods or Counterband are actually taken Aboard they were unclear whether seasure should be sustained in any other case upon
Eodem die MAster Andrew Birny having granted a Bond to Alexander Short blank in the Creditors Name he for an equivalent Cause delivered the same to David Henderson who filled up his Name therein and Charges Mr. Andrew therefore he Suspends on a Reason of Compensation upon a Debt owing to him by Short to whom he delivered the blank Bond for whom he became Cautioner before he granted the Bond and payed the Debt partly before and partly after this Bond so that Henderson by filling up his Name being Assigney and Short Cedent payment or compensation against the Cedent before the Assignation is relevant against the Assigney It was answered that in this Case compensation is not relevant because the very Delivery of a Bond in a blank Creditors Name imports that the Receiver thereof may put in any Mans Name he will and he may never make use of Compensation against him whose Name is filled up otherwise why should the Creditors Name have been left blank which if it had been filled up it behoved to have had an Assignation which is but a Procuratory in rem suaem so that the Procurator can be in no better state nor the Constituent but the blank makes the Person filled up Creditor principally The Lords found Compensation not relevant against a Person whose Name was filled up in the blank being a singular Successor to him who first received the Bond. Mr. William Chalmers contra Wood of Balbegno Eodem die MAster William Chalmers Parson of Feltercarn pursues Reduction of a Tack of the Teinds of the Paroch granted by his Predecessors on this ground that it is null by Act of Parliament as wanting Consent of the Patron The Defender alleadged Absolvitor because the Pursuer had Homologat his Tack in so far as he had received payment of the Duty conform to the Tack which was a clear acknowledgement thereof It was answered that this could only be an Homologation for the years received and could not Homologat the Tack itself because the Tack was a standing Right valid till it were Reduced and the Pursuer could get no more then the Tack-Duty till he should Reduce the same The Lords found this no Homologation to validat the Tack Lord Justice Clerk contra Home of Linthel the Procurator-Fiscal and Officers February 28. 1668. THe Lord Iustice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony The Officers Poinded an Ox in October after the Plowing was begun The Lord Iustice Clerk pursues a Spuilzy as being Poinded in Labouring time and insisted against Linthel as Depute who gave the Decreet and Precept to Poind and as he who knew of the Poinding of the Ox by the Officer before he was Delivered and commanded to Deliver him and against the Officer who Poinded and the Procurator Fiscal who by the Executions of the Poinding produced Received the Ox from the Officer at the advising of the Cause Linthel having Deponed by his Oath that the Officer had told him an Ox was Poinded and he commanded the Officer to Deliver him and that he knew not he was a Labouring Ox so that that member not being proven the question was whether Linthel as Deput giving a Precept to the Officer to Poind in common form was lyable for the Spuilzy if the Officer did illegally Poind and so was answerable for the Fault of the Officer The Lords found him not lyable and therefore Assoilzied Linthel and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal especially seing the Defenders defended themselves with the Poinding and themselves produced the Execution and for the violent profits the Lords Decerned 5. Shilling for every day from October to May inclusive being Labouring time and that yearly since the Spuilzy till the Sentence Duke Hamiltoun contra Maxwel of Moreith February 29. 1668. THe Duke of Hamiltoun as Collector-General of the Taxations having Charged Maxwel of Moreith he Suspends upon this Reason and alleadges that he had Imparked and Inclosed a ten Merk Land since the Act of Parliament 1661. anent the Inclosing of Grounds by which all Lands to be Inclosed thereafter are to be free of all publick Burdens It was answered that the Act of Convention was posterior and had no such exception but on the contrair took away all former exceptions It was answered that an Act of Parliament cannot be Derogat or Abrogat by an Act of Convention The Lords found the Reason relevant notwithstanding of the Act of Convention Ioanna Mâ—alexander contra Charles Dalrymple Iune 9. 1668. IOanna Mâ—alexander a Sister Daughter and one of the nearest of kin of Umquhile Elizabeth Dalrymple pursues a Reduction of the said Elizabeth her Testament whereby she nominat Charles Dalrymple her Brothers Son her Executor and universal Legator upon this Reason that in the time of the making that Testament she was not compos mentis but fatuous and insensible The Lords having appointed the Witnesses of the Testament and other Witnesses to be Examined thereanent the Witnesses in the Testament and Writer thereof being Examined Deponed that she was in her right Miâ—â— and gave order for drawing of the Testament and gave order to Subscribe it the other Witnesses Deponed that about that time for several weeks before and some time after the Defunct was fatuous and not in a right Mind and to every question proposed to her she answered alwise yea yea and some words of Ravery which she frequently spoke The Lords having also caused Re-examine the Testamentar Witnesses that it might appear whether she did only answer to Interrogators as when it was answered whether she would have Charles Dalrymple her Executor and universal Legator and whether she said yeaâ— yea and whether she gave Direction without a forgoing question by words that might signify her Sensibility And having considered the whole Testimonies they found that Probation most pregnant that she was Fatuous and insensible at the time of the making the Testament and therefore Reduced albeit the Witnesses were Extraneous that proved and were not present at making the Testament at which time a lucide interval of a Person Distempered by Disease not constantly Fatuous might have been sufficient This was stoped till it were further heard Sir Iohn Gibson contra Iames Oswald Iune 13. 1668. SIr Iohn Gibson and Iames Oswald having mutual Declarators of Property of a peice of contraverted Ground lying on the Mâ—rch between two Gairs or Bentish Strypes of Ground through a Moor equal number of Witnesses being Examined for either Party one Witnesse for either side proved 40. years constant Possession of the Party Adducer and that they did interrupt the other Party and turned away their Cattel when they came over some of the witnesses did prove either Party to have had Possession above 40. years since but did not prove that they knew the same constantly so Bruiked neither did they know any thing to the contrary and
wayes secure contra acquirenda unless the Assignation or Disposition had been equivalent to the Debt and satisfied it The Defender answered that that which was here Acquired was only a Fee for Service which is Alimentar and the Fee will not be due unless the Defender Serve in suitable condition effeirand to his place and therefore it cannot be made forth coming to any other use The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service could not be reached by his Creditors to whom he had made cessionem bonorum except as to the superplus more then what was necessar and they found no superplus in this case Captain Allan contra Parkman Eodem die CAptain Allan having taken Bartholomew Parkman and obtained him to be declared Prize Parkman raises Reduction and for fortification of the Admirals Decreet of Adjudication these Grounds were alleadged First That by the Testimonies of the Steirsman and Company it was proven that three of the Company were the Kings Enemies and so conform to the Kings Declaration of War Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies this Ship was Prize as was lately found in the case of the Ship called The Castle of Riga And albeit by a former Interloquitor the Lords had not found three men to be a number sufficient for Confiscation Yet it was not then considered that the whole Company consisted but of eight so that near the third of the Sailers were the Kings Enemies and one of them the Steirsman which is a considerable proportion 2dly This Ship though pretended to belong to the Swedes yet she had served the Kings Enemies the Danes and Hollanders two years and by the Swedish Treaty it is provided quod naves nullo modo accommodentur utriusque foederati inimicis 3dly It is also proven that this Ship carried Counterband-goods viz. Tar which was not the product of Sweden but carried from Denmark to Holland and that she was taken in her return having in a loadning of Salt from France so that albeit the Ship had been empty she might have been taken Prize in that same Voyage in which she did partake with the Kings Enemies or being taken in the same Voyage in which she had carried bona hostium And lastly it was also instructed that the Cargo with which she was taken was the product of the Counterband-goods and so in the same case as if the Counterband-goods had been actually in her the product being surrogatum quod sapit naturam surrogati It was answered for Parkman to the first Ground that he opponed the Lords Interlocutor finding three Sailers no sufficient number for Confiscation And in the case of The Castle of Riga the major part at least the half were the Kings Enemies To the second Ground it was answered that the Kings Allies making use of their Ships for Fraught was no way a lending of them to the Kings Enemies and as for the remnant Goods by the Kings Declaration of War there is only given Warrand to sease Ships having in them Counterband-goods or Enemies Goods and the Swedish â—rety bears expresly si deprehenduntur so that this Ship having in her when she was taken no Counterband nor Enemies Goods is free It was answered that the Kings Declaration although it mention some cases of Seasure is not full or exclusive but the Law of Nations must take place or the Custom of Scotland in cases not exprest in the Kings Declaration And as for the Swedish Treaty it cannot be pleaded unless Parkman had a Pass from Sweden in all points conform to the Treaty but their Passes were in several things disconform as being granted when the Ship was in Holland and sent over Land And as for the Custom of Scotland to take Ships in the return of that Voyage in which they carried Counterband or prohibited Goods it appeareth by the Captains Commission and former Commissions in Anno 1628. and by a Decreet declaring a Prize wherein the same ground was Libelled that she was taken in the return of that same Voyage in which she had carried Counterband And the Lords having Written to my Lord Secretary his Letter in return bears That the Lords should decide according to the Law of Scotland It was answered for the Stranger that the particular Custom of Scotland can be no Rule for the Swedes but only the Law and Custom of Nations â— and that England nor no other Nation hath that Custom to make Seasure but in delicto otherwise all Trade and Commerce would be destroyed unless Seasure were only upon what were visibly Aboard and not upon the pretence of what had been Aboard and albeit a Delinquence once committed by partaking with the Kings Enemies might endure for a longer time Yet the Custom of Nations for the utility of Trade hath Abridged it to actual Seasure in delicto and accordingly Judge Ienkins Judge of the Admirality in England hath Attested that during this War after search of the Records and Conference with other Judges he knows not of any Prize declared but when the Counterband goods or Enemies Goods were taken actually in them And for the Decreet alleadged on albeit that Ground be in the Libel yet other Grounds are also therein and there is no Debate as to that particular Point neither doth the Probation mentioned in the Decreet clear that that Point was proven And as to the Tenor of the Commissions albeit they might excuse the Captain from Fine or Damnages yet Strangers did not nor were not obliged to know the same but the Law and Custom of Nations and the Kings publick Declaration of the War and their Treaties The Lords having considered the Debate and that the several Points were of Importance and Preparatives they resolved to take the Grounds joyntly and so found the Ship Prize as having so considerable a proportion of her Company the Kings Enemies Some also were of the opinion that she having been taken in the return was sufficient especially not having a sufficient Swedish Passâ— but the plurality waâ—ed these Points whether the returns of Enemies Goods or Counterband or whether the Product or not Product thereof were sufficient Grounds of Seasure seing it did not so appear by the Custom of Nations or the Kings Declaration of War but by the former Debate it appeared that she had Aboard when taken a small parcel of Tar. Mr. David Falconer contra Sir Iames Keith Iuly 14. 1668. MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam that he being in the exercise of his Office informing the President to stop a Bill of Suspension given in by Sir Iames Keith Sir Iames did revile and threaten him calling him a Liar and a Knave and saying if he found him in another place he would make him repent what he said The Lords having received Witnesses in their own presence and finding it proven sent Sir James
and found that the Cedents Oath could not be taken in prejudice of the Assigney to astruct the verity of the Subscription unless the Assignation had been gratuitous or the matter had been litigious before the same In which case they found that there was no place to Resile after the Subscription of the first Nottar the verity and warrand of the Subscription being proven by the said Margarets Oath The Suspender further alleadged that he could not Remove because the Liferenter being year and day at the Horn he had a Gift of her Liferent Escheat and thereby had right to possess her Liferent-Land The Charger answered non relevat because the Gift was not declared 2dly It could not be declared because it proceeded upon a Horning against a VVife cled with a Husband who being sub potestate viri cannot be Contumacious or Denunced Rebel thereupon The Suspender answered that he needed no Declarator himself being in possession of the only Right to which the Declarator could reach 3dly The Horning albeit against a VVife was valid unless it had been upon a Debt contracted during the Marriage but this Horning proceeding upon a Decreet against a VVife as Executrix and vitious Intromissatrix with her Husbands Goods a Horning upon her own Fact or Fault was alwayes effectual The Lords would not sustain the Gift without a Declarator and superceeded any Extract at the Chargers Instance till a day betwixt and which he might insist in his Declarator and superceeded till that time to give answer in relation to the Horning because the Kings Officers behoved to be called Mr. Alexander Seaton contra Menzies December 19. 1668. MR. Alexander Seaton as Executor to his Brother Pitmedden pursues Seaton of Menzies as Representing his Father who was one of the Pursuers Brothers Tutors for his Fathers Intromission with the Pupils Means who alleadged Absolvitor because the Pupil after his Pupillarity had granted a Discharge to one of the Co-tutors which did extinguish the whole Debt of that Co-tutor and consequently of all the rest they being all correi delendi â—yable by one individual Obligation which cannot be Discharged as to one and stand as to all the rest for albeit pactum de non petendo may be granted to one and not be profitable to the rest a simple Discharge which dissolveth the Obligation of the Bond must be profitable to all The Lords Repelled this Defense unless the Discharge had born payment or satisfaction given and in tantum they found it would be Relevant but not a simple Discharge which could only be Relevant in so far as they by this Tutor would be excluded from the Co-tutors bearing a share with this Tutor in omissis male administratis there being nothing here but this Tutors own proper Intromission now insisted for The Lords Repelled the Defense simply Margaret Mckenzie contra Robertsons December 23. 1668. MArgaret Mckenzie pursues the Executors of her Husband to pay her share of the Moveables who alleaged Absolvitor because there was as much Debt as would exhaust the whole Moveables It was answered non relevat unless it were alleadged that the Executors had payed the Debt for the Debts being yet due it is jâ—s tertij for them to alleadge thereupon neither can this Pursuer propone alleadgances of payment Compensation or any other or the Defenders Reply upon the Debts belonging to third Parties unless they were pursuing themselves but the Pursuer is content to find Caution to repeat her share in case they were Distrest The Lords Repelled the Defense but prejudice to the Executor to Suspend upon double Poinding calling the Creditors It was further alleadged for the Defenders that they must have allowance of Sums bearing Annualrent since 1641. It was answered that no such Sums can burden the Relict her part because by the Act of Parliament the Relict has no share of such Sums if they were due to the Defunct and therefore a pari she cannot be burdened with such Sums being due by the Defunct The Defenders answered that the Act of Parliament excludes Relicts from such Sums as bear Annualrent being due to their Husbands but doth not bear that they shall be free of such Sums due by their Husbands and Statutes being stricti juris the Lords cannot extend them beyond their Sense to like cases The Pursuer answered that the Lords always did and might Explain and Extend Acts of Parliament to Cases implyed and consequent albeit not verbatim exprest and as to this Act of Parliament it bears expresly that all such Bonds shall remain in their condition as they were before the Act of Parliament 1641. quoad fiscum relictam before which the Bonds bearing Annualrent could not have burdened the Relict for the word such Bonds may not only be extended to Bonds due to Defuncts but to Bonds due by Defuncts The Lords Repelled also this Defense and found the Relicts part not to be burdened with any Bonds due by her Husband bearing Annualrent unless they had become Moveable by a Charge or that the Term of payment of the Annualrent was not come at the Defuncts death Smith contra Muire Eodem die JEan Smith having pursued Margaret Muire as vitious Intromissatrix with the Goods of George Smith her Husband to pay the sum of 110. pounds due by Bond by the said George to this Pursuer his Sister obtained Decreet thereupon and Appryzed the Liferent of the said Margaret Muire who Suspended and raised Reduction on this Ground that she could not be lyable as vitious Intromissatrix because she possest her Husbands Moveables by a Title in so far as by her Contract of Marriage she was provided to all the Goods and Gear acquired during the Marriage for her Liferent use and so she could only be lyable for making forthcoming the true value after her Death The Charger answered First That there could be no Liferent of Moveables quae usu consumuntur and all Liferents of usus fructus must be salvâ rei substantiâ 2dly Though a Liferent could consist in Moveables yet the meaning of such a Clause of all Moveables acquired during the Marriage must be understood the free Moveables deducing Moveable Debt and cannot be understood to exclude lawful Creditors The Lords found the Clause to be understood only of free Gear and not to exclude the Pursuers Debt but found it a sufficient ground to free the Suspender from vitious Intromission and to Retrench the Decreet to the true value Sir Iohn Weems contra Forbes of Tochâ—n Ianuary 2. 1669. SIr Iohn Weems having Charged Tochon for Maintainance due in Anno 1648. or 1650. conform to Act of Parliament and Commission granted to him and Decreet of the Lords Tochon Suspends on this Reason that singular Successors are free by the Act and he is a singular Successor by Appryzing It was answered that the exception of the Act was only in favours of singular Successors who had bought the Lands which cannot be extended to Appryzers who oftimes have the
proven they were not obliged to take Terms to produce or otherwise upon this pretence of Part and Pertinent before the samine were instructed any party might necessitate all his Neighbours to make patent to him their Charter Chists The Pursuer answered that the Defenders ought to take a Term to produce and that before Certification at that Term he would prove Part and Pertinent and alleadged the Practique in the Case of the Town of Sterling observed by Dury the 24. of Iune 1625. The Lords Sustained the Defense and would not put the Defenders to take Terms till the Lands in question were first proven to be Part and Pertinent and allowed the Pursuer to insist primo loco in this Declarator for that effect and as to the Practique alleadged they found in that Case the Defenders alleadged upon no Right whereas the Defenders propone here upon an expresse Infeftment Laird Kilburny contra the Heirs of Tailzie of Kilburny and Schaw of Greinock Eodem die UMquhile Sir Iohn Crawford of Kilburny having only two Daughters the eldest Married to Blackhal Dispones his Estate to Margaret the younger and to the Heirs-male of her Body which failing to the eldest Heir Female without division throughout all the Succession and failling the Issue of this Daughter his eldest Daughter and her Issue and failling of these Iordanhil and Kilburny their Issue all which failling his own Heirs and Assigneys whatsomever In which Disposition there is a Clause that the said Margaret and the Heirs of Tailzie should not alter the Tailzie nor Dispone or burden the Lands ' or contract Debts whereby they might be Apprized and carried from the Heirs of Tailzie otherwise the Contraveeners should lose their Right ipso facto and there should be place to the next Heir of Tailzie but there is a Clause subjoined that the said Margaret and the Heirs of Tailzie might Sell Dispone and Wodset the Lands of Easter Greinock and Carsburn and might burden the same with Sums of Money for paying and satisfying of the Defuncts Debts The said Margaret Crawford having Married the Earl of Crawfords Son Patrick they did Sell the Lands of Easter Crawford and Carsburn to Sir Iohn Schaw of Greinock at a Rate far above the ordinar Price having expected a Bargain with the Town of Glasgow for a Harbour there but the Town having made another Bargain with New-wark Greinock pursued Kilburny either to annul the Minut or fulfil the same and to secure him in relation to the Clause de non alienando and to that effect Kilburny raises a Declarator against the Heirs of Tailzie to hear and see it found and Declared that by the Right granted to the Lady by her Father she might lawfully Sell the Lands of Easter Greinock and Carsburn The Heirs of Tailzie compeared not but Greinock compeared and was admitted for his Interest which was that the Processe being for his security he might propone all the Defenses which he thought competent to the Heirs of Tailzie and alleadged that the Libel was no ways Relevant bearing a power to Sell simply but that it ought to have been conform to the Clause in the Disposition viz. to Sell Wodset or Burden for payment of the Defuncts Debts which did necessarly import that no further could be Sold then what was sufficient to pay the Debt and therefore no Processe till the Libel were so ordered and the Debts produced The Pursuer answered that he opponed the Clause having two Members one bearing with full power to Dispone the Lands of Easter Grienock and Carsburn and the other bearing to affect the same with Sums for paying of the Defuncts Debts which payment of the Defuncts Debts was but the end motive and consideration for which the power was granted but was no restriction quality or limitation of the power 2dly It did only relate to the second Member of the Clause and not to the first Member which bore with full power to Sell and Wodset c. which full power is directly opposit to a limited power 3dly Albeit the Pursuer were obliged to instruct the Debt and apply the price for satisfying thereof yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt but he satisfying the Debt more or lesse hath acted conform to the Clause which uses to be so exprest in Clauses of this nature as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt which not being exprest these restrictive Clauses being against common Law are strictissimi juris and not to be extended beyond what the words expresly bears 4thly Albeit the Pursuer were obliged to instruct that there were Debt which might be a price yet he were not obliged to instruct that they would be equivalent to this price but to such a price as were not a third part within the ordinar Rate in which latitude every Seller hath power and the alienation cannot be quarrelled and albeit that price would be more then the Debt yet these Lands being two intire Tenements which none would Buy by Parcels the Pursuer could only be comptable to the Heirs of Tailzie for the superplus The Defender answered that he opponed the Clause being one and copulative and that these Lands being put per expressum in the Clause de non alienando It could not be thought that the immediat following Clause would give the Lady as much power as to these Lands as if they had not been in the former Clause but the intent to satisfie the Defuncts Debt being the last words in the Clause is relative to the whole Clause and natively resolves into an Restriction or Quality not bearing that they night be the more able to pay the Debts but for payment and satisfaction of the Debts The Lords considering that Heirs of Tailzie were absent and that as to them the Interlocutor would be in absence found it most just and safe for both Parties to declare conform to the Clause that the Alienation was valide for satisfying the Defuncts Debts and found not that the Debts behoved to be equivalent to this price The Creditors of John Pollock contra James Pollock his Son January 21. 1669. THe Creditors of John Pollock having Adjudged his Tenement for their Debt and James Pollock having gotten a Bond of 5000. Merks from his Father payable after his Fathers death which was granted after he was Married he did also Apprize thereupon within year and day of the Adjudication The Adjudgers raise a Reduction of this Bond and the Apprizing following thereupon upon these Reasons First Because the Bond was granted for Love and Favour and albeit it bear borrowed Money yet the said Iames has acknowledged by his Oath that it was for Love and Favour and so being granted betwixt most conjunct Persons after the contracting of their Debts it is null by the Act of Parliament 1621. The Defender alleadged that the Reason was not Relevant as to such Debts
Bargain or to necessitat her to quite the same and give only a Wodset seing the Clause gives her power both to Sell and Affect and does not limit her to either of them The Lords Repelled the Defenses aâ—d declared that the Lady had warrantably Sold these Lands and that the principal Sums being so considerable although the Rental had been more they were sufficient and found that the Clause laid no necessity upon her to exhaust the Moveables and that she might thereby Wodset or Sell at her pleasure Iames Deanes contra Alexander Bothwel February 5. 1669. ALexander Bothwel of Glencorsse being conveened before the Commissars of Edinburgh for Slandering Iames Deanes Procurator before the Commissars in calling him a false knave publickly in the Parliament House and at the Crosse the samine being proven by Witnesses he was Decerned to stand at the Kirk Door of Glencorsse where both Parties dwelt and acknowledge his Fault and to pay 100. pound to the Poor and 100. pound to the Party Bothwel Suspends on these Reasons first That the Commissars could not ordain him to stand at an Congregation which is an Ecclesiastical Censure 2dly That they could not also Fyne him to the Poor nor Decern any thing to the Party but the Expences of Plae seing there was no other Damnage Lybelled nor proven 3dly That the Witnesses were not habile being the Pursuers own Servants The Charger opponed the Decreet wherein the Suspender was compearing and objected nothing against the hability of the Witnesses then and therefore cannot now quarrel their Testimonies and that it was most proper for the Commissars to cognosce upon Slander or Defamation neither was his standing in order to Repentance but in order to restoring the party to his Fame The Lords Repelled the Reasons and Sustained the Decreet in all Points Cleiland contra Stevinson Eodem die William Cleiland Charges Iohn Stevinson upon a Bond of 400. Merks bearing Annualrent he Suspends on this Reason that the Charger was owing him more for Victual being his Tennent which was now liquidat before this time but after the Date of this Bond and craved compensation thereupon not only from the Date of the liquidation but from the time the Victualrent was due Which the Lords Sustained Rule contra Rule February 6. 1669. MArgaret Rule having made a Consignation of certain Bonds and in general of all other Rights with a Disposition of all her Goods to Umquhile Robert Rule her Brother who having named Mr. David Rule his Executor and universal Legator did upon his Death-bed acknowledge that his Sisters Disposition was in trust to her own behove granted upon that consideration that she being a Bastard unless she Disponed in her leige poustie her Means would be Confiscat by her Bastardy she thereupon pursues the said Mr. David Rule to deliver back her Assignation with her own Writs The Defender alleadged the Lybel was no way Relevant there being nothing Libelled but the Defuncts acknowledgement of a Trust upon Death-bed and that offered to be proven by Witnesses only but First The Trust behoved to be declared by a Declarator and not thus by an Exhibition 2dly Trust is only probabable scripto vel juramento being a matter of so great importance 3dly Some of the Rights Assigned and Disponed are Heretable and nothing done upon Death-bed can prejudge the Defuncts Heir thereof 4thly An extrajudicial Confession without Writ albeit it were acknowledged hath no effect for it cannot be known quo animo such words might have been exprest The Pursuer answered that the Trust might be very well Lybelled with the Exhibition and albeit the Defuncts Confession would not alone be sufficient to prejudge his Heir yet it may very well stand as an evidence of Trust which cannot be astricted to probation by Witnesses but hath ever been found probable by other evidences especially where the Person trusted is Dead and the Pursuer condescends upon these evidences and adminicles of Trust. First Communis fama 2dly The Assignation and Disposition bears no Reservation of the Disponers Liferent and yet she continued still in Possession and her Brother whom she Entrusted never medled which he would not have done if the Disposition had been for a Cause Onerous or to his own behove 3dly He did solemnly in presence of Witnesses above exception acknowledge the Trust on his Death-bed The Lords Sustained the Summons and would not astrict the Pursuer to prove by Write or Oath of Party but ordained Witnesses to be Examined ex officio anent the evidences and adminicles condescended on by the Pursuer Black contra Dawid French February 9. 1669. THe Lands of Miln-burn being holden Waird of the Dutchess of Hamiltoun after Miln burns Death the Duke and Dutchess grants a Gift of the Waird to Mr. â—oâ—ert Black who pursued for Mails and Duties and likewise David French having Appryzed from Miln burn and having Charged the Dutchess before Miln-burns Death to Receive him he pursues the Tennents for Mails and Duties who Suspend upon double Poynding In the Competition it was alleadged for the Appryzer First That his Appryzing being a Judicial Sentence did Denude Miln-burn the Vassal in the same way as if Miln-burn had Resigned in the Dukes Hands in favours of David French after which Miln burn was totally Divested and no Casualty could befall to the Superior by his Death Ita est that Law hath stated a Decreet of Appryzing in the same Case as an Resignation accepted for though the Vassal against whom the Appryzing was led should Die the Appryzer will summarly upon a Charge obtain himself Infeft so that the former Vassal was totally Denuded 2dly Here not only there is Appryzing but a Charge against the Superior which fictione juris is in all points as if the Appryzer were actually Infeft and therefore the Appryzer who first Charges albeit he inâ—iâ—t not to use any further Diligence is ever preferred to all other Appryzers Infeft after It was answered for Black the Donator that he ought to be preferred because the Superior who gave his Giâ—t could not want a Vassal nor loss the Casualty of his Superiority without his own fault but the Appryzer did not become Vassal neither by the Appryzing nor by the Charge nor was it ever found that the Liferent or Waird of an Appryzer fell unless he had been actually Infeft and it would be of very great disadvantage to Creditors if the naked Charge should make their VVaird to fall which they may pass from at their pleasure therefore seing the Appryzer could not be Vassal the former Vassal behoved to remain Vassal and seing the Superior could not have a Waird by the Appryzers Death he behoved to have it by the former Vassels Death and albeit the Charge be â—qulparat to an Infeftment as to the Competition of Appryzers whom the Superior may not prefer but according to their Diligences yet it is not holden as an Infeftment to any other Case for thereupon the Appryzer cannot remove the
of the subsequent Terms to the Debitor which they were in bona fide to do knowing no Law nor Custom to the contrare The Lords Repelled the Defense and found the Arrestment to be valide for that Terms Duty that was then running and found that the Arrestment was rather like to an Inhibition then an Apprizing which gave present payment Scot of Hartwood-mires contra November 6. 1669. SCot of Hartwood-mires gave in a Bill of Suspension of a Decreet in foroâ— which the Ordinar reported to the Lords the Reason of Suspension was that he being Conveened as Representing his Father to pay the Debt in question for which his Father was Cautioner he offered to prove payment denying alwise the passive Titles and having proven the most part payed by Discharges granted to the Principal Debitor he was Decerned for the rest and now offers to Renunce to be Heir to his Father conform to his Protestation in the first Act. It was answered that the Defense of payment does never suffer the proponer to deny the passive Titles or put the Pursuer to a necessity to prove them by the constant custom founded upon good Reason because the proponing upon any positive Right of the Defuncts is a behaviour as Heir and in the Act of â—iâ—is contestation a Term is only assigned to the Defender to prove payment and the Protestation in effect is rejected because there is no Term therein assigned to the Pursuer to prove the passive Titles in case the Defender failed to prove payment neither could there be any by our Custom The Lords refused the Suspension and found that the offer to prove payment Liberated the Pursuer from proving the passive Titles Lady Towy contra Captain Barclay November 9. 1669. THe Lady Towy having pursued Improbation of a Bond of an bundreth thousand Pounds alleadged granted by the Umquhile Laird of Towy to Captain Barclay and of a Disposition of the Estate of Towy alleadged made by the Tutor of Towy the day after the Laird of Towy died at the Barns of Towy which Tutor fell Heir-male to the Laird who had only one Daughter the foresaid Bond and Disposition being produced Judicially before by Captain Barclay though not in this Process he refused now to produce the same but suffered Certification to be granted against it The question having arisen whether any further Process could be in the Improbation in respect that the principal Writs were not produced but Copies bearing the Tenor Date and Witnesâ—es insert The Lords the last Session did Examine Captain Barclay and Steel one of the Witnesses insert and certain others and Steel confessing the Forgery and Captain Barclay denying the same after he was Confronted with Steel and denying the having of the principal Writs the Lords sent Captain Barclay and Steel to the Tolbooth of Edinburgh to be keeped there till the Event of the Plea or further Order and did thereafter permit Steel to come out upon sufficient Caution for a great Sum and the other Witnesses inserted being Sumonned and not Compearing The Lords granted Caption against them and gave Commission to certain Persons to search for them and now Iohn Rosse the other VVitness in the Disposition and Alexander Ferguson who filled up the Date and Witnesses both in the Disposition and Bond and Subscribed Witness to the Bond and insert himself as VVitness in the Disposition but Subscribed not as VVitness in the Disposition being brought to the Bar. It was alleadged for Captain Barclay that the saids VVitnesses could not be Examined First Because there was now no Process depending in respect that the Improbation which was only civilly intented was determined by the Decreet of Certification which now is Extracted and albeit the Lords did before Examine Captain Barclay and Steel yet the Process was then depending and the Certification not Extracted 2dly It was alleadged that Rosse and Fergusson were not habile VVitnesses having appeared most partial upon the Pursuers part having stayed a long time with her in her House Et prodiderunt Testimonia in so far as not only they had declared what they would depone but that they had set the samine under their hands and that by their said Subscription they acknowledged themselves accessory to the Forgery and so by their confession they are socij criminis and being culpable of so great a Crime are infamous and their Testimonies can make no Faith against any but themselves It was answered for the Pursuer that Improbations even civilly intented are not totally determined by the Certification which is of its own nature but an Interlocutor Sentence and if the Pursuer should notwithstanding thereof find out and produce the Principal Writ he might proceed to the Improving thereof it being very well consistent that it might be holden and repute false by the Certification and might also be proven to be false and though the Pursuer could not produce the Writ yet the Process is not wholly determined by the Certification but it may be justly desired that all evidences of the Forgery that were possible without production of the Writ might be taken to remain in retentis in case the Principal should after be found for there might be clandestine Assignations of the Writs made by Barclay and Intimat at the Pursuers Dwelling-house or Forged and Antedated Intimations made up so that the Certification would not be effectual against the Assigney's and though Parties should not insist the Kings Advocat who is also Pursuer of the Process might insist that the VVitnesses might be Examined for detecting of the Forgery and there could be no case more favourable then this wherein Captain Barclay had Judicially produced the VVrits and now wilfully refuses to produce the same and if Forgers shall escape and be in no more hazard but suffer Certification though they have burnt or wilfully keep up the VVrits it will be an open Door to encourage all Forgerers neither have the VVitnesses betrayed their Testimonies albeit being Examined by the Lord Fivy a Nobleman in the Countrey one of them did Subscribe who had just ground to think that it was no voluntar Deed but that the Lord Fivy might have sufficient Authority for that effect but whatever objections were against VVitnesses they are ever Received in Improbations and the Lords at Advising of the Cause do consider what their Testimonies may work at which time only it will be proper to object The Lords notwithstanding these alleadgeances Examined the VVitnesses Rosse acknowledged that he being Servant to Captain Barclay he called him up to Subscribe VVitness to a VVrit but told him not about what it was nor did not let him hear nor see what was written therein but rolled it up and presented only to him the white paper near about the end of the VVrit and desired him to Subscribe VVitness and he saying that he could not be VVitness because he saw no body Subscribe the Captain answered that that was nothing to him and that he should stand betwixt
Drummond contra Stirling of Airdoch Compensation of a Bond by Rents was sustained to take Effect not only from the date of the Decreet Liquidating the Rents but from the time the Rents were thereby proven to â—e due February 5. 1669. Cleiland contra Iohnstoun COMPETENT AND OMITTED was â—ound Relevant as to Decreets of Suspension since the Act of Sederunt 1649. and that a reason then past from in a Suspension pro loco tempore could not in eodem statu be repeated against that Decreet or Appryzing thereon especially seing the Appryzing was not expyred and might be Redeemed Iuly 17. 1664. Laird of Tulliallâ—â—â— and Coâ—die contra Crawfâ—ord Competent and omitted was not Sustained against Strangers in Decreets against them before the Admiral Iuly 23. 1667. Iâ—rgan contra captain Logan A COMPâ— sitted and bearing at the foot such a Sum resting not mentioning the Instructions of the Accompt or delivery thereof was found not to make the Debitor lyable to produce the Instructions or compt again unless it were proven by Writ or his Oath that the Instructions were in his hand albeit a considerable Article of the Accompt was general bearing paid for the Pursuer to his Creditors 20000. pounds and though the foot of the Accompt was â—xhausted by debts paid upon Precepts from the Creditor after that Accompt December 17. 1667. Lord Abercrombic contra Lord Newwaak A COMPT BOOK of a Factor in Campheir being proven â—o be unvitiate or Written by the Factor or a known Book-keeper and Sequestrat before any question was found to prove against the Factors Brother and Assignay even quo ad datam being instructed by the oaths of the Debitors who paid conform to the Articles in the Book Iuly 19. 1662. Skeen contra Lumbsdean Renewed Ianuary 9. 1663. Inter eosdem A Compt Book Written by the hand of a person of discretion was found sufficient to prove payment of his Rent against his Executor Creditor but the Tennent being on Life was ordained to depone on the Truth of the payment November 20. 1662. Wardlaw contra Gray AFTER CONCLVSION of the Cause a Reply instantly verified and not putting the Defender to prove was admitted but a duply doâ—ose omitted before Lâ—tiscontestation and not being instantly verified the same was repelled albeit there was a Reservation contra producenda this alleadgeance was upon part and pertinent of the Lands contained in the Infeftment produced December 10. 1664. Lyon of Murâ—aâ—k contra Farquhar After conclusion of the cause in a Reduction the same was found not to be advised till some representing some of the Authors who died pendente liâ—e were called Iuly 14. 1666. Leâ—th contra Laird of Lessemore Troup and others CONFESSION to the Church and standing a year was found not to prove Adultery to 〈◊〉 infer the parties Escheat Ianuary 9. 1662. Baird contra Baird Here the Defender had taken Remission CONFIRMATION of Exchequer to a particular effect in so far as concerned the obtainers base Infeftment granted by him who was Infeft but not confirmed was found valide only ad istum effectum and not to accresce to any other Ianuary 16. 1663. Tennents of Kilhattan contra Laird of Kelhattan Major Campbel and Baillie Hamiltoun Confirmation and paying of the Quote was found necessary though there was a Disposition omnium bonorum without a cause onerous or any delivery Iune 23. 1665. Procurator Fiscal of of Edinburgh contra Fairholm Confirmation and Quote was not excluded by a Disposition omnium bonorum with a Reservation to the Disponer that he might dispose thereupon otherwise during his life Iuly 4. 1665. Commissar of Saint Andrews contra Hay of Bousie Confirmation of a Scots-mans Testament who lived animo remanendi in Polland was found necessary in Scotland by the Commissars of Edinburgh Iuly 18. 1666. Brown contra Duff and Bisset Confirmation of a Testament wherein the division of the whole Inventar was tripartite and yet much of it was Sums bearing annualrent wherefrom the Relict is excluded was found to need no Reduction as to that division but that notwithstanding thereof the Relict was excluded by Reply Ianuary 18. 1670. Doctor Balâ—oure and his Spouse contra Wood. Confirmation Vide Homologation Confirmation of an Annualrent granted by a Vassal to be holden of the Superiour was found not to take away any casuality belonging to the Superiour but that the same might be made use of against that Annualrent as communicating only a part of the Vassals Fee but no interest of the Superiority Ianuary 14. 1670. 〈◊〉 of Kirkaldy contra Duncan CONFVSION was found not sufficient to take away an Adjudication against an appearand Heir on his own Bond assigned to himself and so simulate which was found a Ground to Reduce by but not to annul the Bond or Adjudication or make the Defender lyable as Heir Ianuary 22. 1662. Earl of Nithisdail contra Glendoning CONIVNCTFEEARS Vide clause in a Contract of Marriage Iuly 12. 1671. Gairns contra Sandilands CONQVEST VIDE CLAVSE CONSENT of parties to a Decreet judicially was found not sufficiently instructed by the Decreet in respect there was a Minute of Process by which it appeâ—red that the said consent was not Minuted de recenti but half a year thereafter upon remembrance of the Iudges Iuly 24. 1661. Laird of Buchannan contra Osburn Consent of a Minister to quite so much of his Stipend to an Helper was found not proven by an Act of Presbytery without a Warrand subscribed by him Iuly 26. 1661. Ker contra Minister and â—arochioners of Carrin Consent to a March and building a Park-dyke thereon was found not sufficiently proven by the building of the dyke and silence of the other Heretors Ianuary 8. 1663. Nicol contra Hope Consent was inferred by subscribing as Witness to a Writ on death-bed to take away the Reduction on death-bed which the Witnesses could not but know seing the sick man subscribe without Importing his consenting to the contents as in other cases Iune 25. 1663. Steuart of Ashcog contra Steuart of Amholme The like Iuly 24. 1666. Halyburtoun contra Halyburtoun Consent of a dumb Man was not inferred by his Subscription of a Discharge given to his Sister whereunto he put the initial Letters of his Name seing nothing was adduced to instruct that he knew what he did Iuly 9. 1663. Hamiltoun contra Ethdale Consent of a Wodsetter in a Disposition with the Reverser was found not to carry his Right seing he assigned no part of the Sums and that it only imported the Restricting of his Wodset to the remanent Land and Renuncing the rest Iuly 4. 1665. Boyd contra Kintor Consent was not inferred by knowledge and silence in that a future Husband knew his future Spouse had disponed a part of her Ioynture and yet went on in the Marriage Ianuary 5. 1666. Heretors of Iohns-miln contra the Fewers Consent to a Diiposition of a Wodset Right which Dis-Position disponed the Lands but neither exprest under Reversion or Irredeemable which consent was
Writ was reduced upon that Sentence as posterior and prejudicial to the bargain Ianuary 21. 1669. Creditors of Pollock contra Pollock Witnesses were admitted to prove a Merchant compt as to Articles more then three years preceeding the Citation it being a curâ—ent accompt though begun by the Defunct and continued afâ—er hâ—â— deceass by his Funeral provision and by the Chamberâ—â—â—â— of his Heir then a Pupil seing three years intervâ—eâ—ed not in any part of the accompt February 26. 1670. Grahame contra Laird of Stanâ—byres Witnesses were admitted to prove the vâ—â—iation of a Contract of Marriage and not to annul it but to extend it as it was before the viâ—iation Iune 11. 1670. Hunter contra Creditors of Peter Witnesses were admitted to prove intromission with Mails and Duties of Tennents though silver Rent intrometted by one who was infeâ—t in an annualrent out of the Tenements albeit by the intromission the principal sum for which the annualrent was constitute would be satisfied and the infeâ—tment extinct February 4. 1671. Wishart contra Arthur Witnesses were admitted to prove an appryzing to be to the behove of the apparent Heir in respect of this concurrent presumpâ—ion that the appryzing was assigned to the appear and Heirs brother February 22 1671. Gordoâ—n contra Mcculloch Witnesses were admitted to proveâ— Ministers possession of â—ands to be by tollerance of an Herâ—â—or and â—o not â—o be a Glâ—ib belonging to the Kirk where the Ministers possession was decenâ—â—lis trienâ—alis but that writ was necessary if his possession haâ—t been for 40. years to prove the tollerance Iune 22. 1671. Minister of contra Duke of â—alâ—leugh WITNESSES EX OFFICIO were received for proving the delivery of a Bond blank in the Creditors name the matter being betwixt brother and sister where Trust was very presumâ—able February 21. 1667. Iohnstoun contra Iohnstoun Witnesses were examined â—x officio to prove Warrant or Command to a deed done in prejudice of him who had the Commission to do the same deed and could have â—indered others February 21. 1667. Lord Râ—â—toun contra Laird of Lambertoun Witnesses and the writer of a disposition were examined ex officio on thâ— Terms of the Treaty and whether when thâ— writ was read being an absolute disposition it was not read as being redeemable Iuly 2. 1667. Allan contra Fairie Witnesses ex officio being admitted hinc inde not the greatest quantâ—ty proven by two but the quantity proven most pregnantly was followed November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Witnesses ex officio were examined to instruct the cause of a Bond to be by arbitriment and exorbitant it being 37. years dorment without annualrent and the sum filled up with a different hand February 6. 1668. Chisâ—holm contra Witnesses taken ex officio proving the imploying of a Wright in his woâ—â— in a Lodging possest by the â—mployer and his frequent direction anent the work were found to prove against his Heir though above 100. pound and though direction alone without sensible acts is only probable by writ or oath Iuly 21. 1668. Thomson contra Earl of Glencairn Witnesses ex officio 〈◊〉 â—â—de examined in a Reduction on death bed albeit the day of compearance was not come to prevent the death or collusion of the most necessary Witnesses February 16. 1669. Creditors of my Lord Balmerino and Cowper contra Lady Cowper Witnesses ex officio were ordained to be examined before answer for clearing a Trust of the right of â—n appryzing upon divers probabilities hinc inde alleadged February 24. 1669. Earl of Annandail contra 〈◊〉 and Crediâ—ors of Hume A Witness examined ex officio prevaricating in his oath first denying and then acknowledging the same thing was declared in famous and set on the Pillory with a Paper on his â—ace signifying his Fault Iuâ—y 6. 1669. Barclay contra Bâ—rclay Witnesses ex officio being examined were admitted to take away a Bond wholly blank or blank in the Creditors name Fâ—bruary 2 3. 1670. Iack contra Boyd of â—â—nkil and the Earl of Kâ—ngâ—orn conâ—ra Laird of Pâ—â—arro Witnesses ex officio were examined anent the being of a Bond amongst the Writs of a Creditor or his Factor that thereby the debitor might be liberat of the Bond as being retired but was not admitted to prove payment or saâ—isfaction thereof though it was an old Bond without any diligence or payment of annualrent for a long time February 14. 1671. Nâ—â—peir contra Earl of Egâ—â—toun Witnesses ex officio were examined in a circumvention for annulling a disposition made by a simple perâ—on of his whole Estaâ—e without reservation on these points whether the writ was read to him when he subscribed whether he was drunk so that reaâ—on and judgement was disordered and what motives were used to make him subscribe Iuly 11. 1671. Stevâ—ns contra Neâ—lson WITNESSES INSERT in a writ and the Writer were â—ound to have â—ccession as users of that writ as false yet was examined though they were socij criminâ—s and Forgers by their own confession being in an imporbation Ianuary 26. 1670. Lady Toâ—viâ— contra Capâ—ain Barclay A WODSETTER was found to compâ— for the superplus above his â—enâ— though the Woâ—set waâ— before the Act of Parliament 1661. betwixt Debitor and Creditor albeit therein the Vsurpers Act and all such Acts made or to be made were â—enunced Ianuary 29. 1662. Laird of Lamingâ—oun conâ—ra Cheâ—slie A wodset bearing in the Reversion a Tack â—aâ— within the worth of the Land to be given after Redemption was sustained as not Vsurâ—ry but the Wodâ—etter was at a great loss by a Liferent medâ—o â—â—mpore Iune 21. 1662. Laird of Polwarâ— contra Huâ—â— A Wodsetter pursuing for his money was found not to have access thereto tilll he recovered the Possession taken from him by a third party intruding seing he did not de recenti intimate the inâ—rusion and demand his money February 17. 1665. Hopringle of Torsonce contra Ker of Sâ—nderland-hill A Wodset being redeemedâ— upon an Order used though without citation of all parties having interest at the Mercat Cross on the declaraâ—or albeit thereby the Wodsetters Wiâ—e who had a base subaltern infeftment from him in Liferent was excluded and the Redeemer was not found obliged to know the same albeit registrate in the Register of Seasines Iuly â—7 1665. Hamiltoun contra her Tennents A Wodset by a Father to a Son redeemable by the Father during his Liâ—e from his Son on a Rosenoble beâ—ng craved to be declared the Son having appryzed and thereupon alleadging that he had right to the Reversion aâ— and while his Aâ—priâ—ing were Redeemed and till that his Father could not Redeem which at first was sustaâ—ned the case of the Son being favourable the Father having disponed the whole right to a second Wiâ—e but being thereafter debaâ—ed in presentia the Lords were of different judgements and decided not in respect the case seemed to hinder Debitors to Redeem aâ—terior Compryzings
power to Dispose of fourty Chalders of Victual and also power to do any Deed he pleased in favours of Balhaven and there could be no Deed more rational then to give a Reversion of his own Estate upon payment of all that the Pursuer had payed to him or for him The Defender answered that this general Clause cannot be understood to be prejudicial to the substance of the Disposition and special Clauses in favours of his Son and the Defenders Oye and their Successors The Lords Repelled the Defense and declared but of consent of the Pursuer superceded to Extract for a time and appointed two of their Number by whose sight the â—ursuer and his Son should be Denuded and the Defender Secured so that it came to no Debate whether such a Clause irritant as this in a Reversion of that which was truely Bought and Sold irredeemably before and no Wodset could be purged Iohn Campbel contra Constantine Dougal Eodem die COnstantine Dougal having granted a Bond to Iohn Houstoun bearing that Iohn for himself and as Administrator for his Son Constantine Campbel had Lent the sum and that the same should be payable to the Father he being on Life and failzieing him by Decease to be payable to Constantine his Son as being his own proper Moneys and to his Heirs or Assigneys Constantine Assigns this Bond to Iohn Campbel who having pursued Exhibition thereof and it being produced insists for Delivery It was alleadged for the Producer that it ought to be Delivered back to him because he had right thereto by Assignation from Iohn Houstoun who in effect was Feear of the Sum it being Lent to him and payable to him during his Life and Constantine his Son was only Heir substitute as is ordinarly interpret by the Lords in such Bonds or Sums Lent by Fathers to be payable to themselves and after their Decease to such Bairns 2dly The Father aâ— lawful Administrator to his Son might have Lifted the Sum in his Sons Minority and therefore he might Assign the same The pursuer answered to the first that albeit Bonds for Money Lent by Parents payabâ—e to themselves and such Children after their Death be so interpret that the Fathers are Feears yet that is only where the Sums are the Parents own but this Sum is acknowledged to be the Sons own Money bâ— the Bond it self 2dly Albeit the Father as lawful Administrator might have Lifted the Sum yet cannot Assign because that is no proper Act of Administration comâ—â—tent to Tutors or Administrators and Executors may uplift Sums and yet cannot Assign The Defender answered to the first that the Money is Lent by the Father not only as Administrator but bears expresly for himself and that these words as being his own Money did not sufficiently prove that it came not from the Father but that after the â—athers Decease it would be the Sons Money To the second that the conception of the Bond being expresly to pay to the Father warranted him to Assign and the Assignâ—y being his Procurator might Lift as well as he the same way as Assigneies can Lift during the Executors Life The Lords found the conception of the Bond to constitute the Son to be Feear and that at leâ—st the words as being the Sons own Moneys presumed the same to have been so ab initio unless it were positively proven that the Money when Lent was the Fathers and found that the Fathers Assignation as lawful Administrator could not exclude the Son but that point whether the Deâ—tors paying to the Fathers Assigney during the Sons Pupillarity or Minority was neither positively alleadged by the Parties nor considered by the Lords Iames Paterson contra Homes December 17. 1667. JAmes Paterson having Charged the Earl of Home in anno 1662. for payment of a Sum due by his Bond. The Earl suspended and found one Brunt-field Cautioner and at the foot of the Bond of Caution Home of White-â—ig Attested the Cautioner in these Terms viz I Attest the Cautioner to be sufficient and subscribes the same which is Registrat with the Bond it self and the Extract produced bearing the same The Suspension being Discust against the Earl of Home and the Cautioner Charged with Horning Paterson pursues the Attester subsidiary for payment of the Debt It was alleadged for the Defender Absolvitor because he having but Attested the Sufficiency of the Cautioner can be holden no further then a Witnesse and so can only be found lyable if his Testimony were found false or that ex dolo he had Attested a person to be sufficient not according to his Judgement but either contrair to his knowledge or without knowledge of his Condition at least his Attesting can only oblige him to prove that the Cautioner when he Attested him was holden and repute a person sufficient for the Sum and that he had a visible Eâ—â—aâ—e in Land Bond or Moveables The Pursuer answered that the Attester behoved to be lyable to him because ejus facto by the Attestation the Suspension was obtained and the Principal being dead without any to represent him and the Cautioner insolvendo the Atâ—ester is obliged de jure to make up the Damnage falling out by his Deed. The Lords found the Alleadgeance for the Attester relevant viz. that the Cautioner was holden and repute sufficient for such a 〈◊〉 at the time of the Attest to be proven prout de jure Lord Abercromby contra Lord New-wark Eodem die THe Lord Abercromby having Sold to the Lord New-wark the Barony of St. Ninians there was a fitted Accompt subscribed by them both in anno 1647. Containing the Sums payed by New-wark and at the foot thereof concluding thirty seven thousand Merks to be Due but there is no mention made of the Instructions in the Accompt the second Article whereof bears payed to Abercrombies Creditor 30. thousand Merks whereâ— upon Abercromby alleadges that seing the Accompt bears not the Delivery of the Instructions that New-wark at least must produce the Instructions of this Article which is general for the Bonds of these Creditors are yet above Abercrombies Head and New-wark makes use of some of them to exhaust the thirty seven thousand Merks Bond at the foot of the Accompâ—â—â— It was answered for New-wark that after 18. years time that he was not obliged to Compt again but the foot of the Accompt being subscribed by the Pursuer beaâ—ing 37. thousand Merks to be only Resting was sufficient to Exoner him and the not mentioning of Instructions Delivered cannot presume or prove against him that they are in his hand else the Accompt signifies nothing and he must not only Instruct this Article but all the rest neither did he make use of any Bonds to exhaust the foot of the Accompt but such only for which Precepts were direct to him after the Accompt The Lords found the Defender not lyable to Compt or produce the Instructions of any of the Articles unless it were proven by his Oath or
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n