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 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
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aâ—nualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ— they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. 〈…〉 pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâ—s Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ— fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâ—ct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâ—thousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debâ—t The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ— for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because it
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
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
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
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
are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
found by the Depositions of the Witnesses that that part of the Town of Inverness on the Northâ—side of the Water only had been in Possession by casting Peats in the Moss contraverted and that the same is a part of Month Kaplock and that the Pursuer had proven the Right of Property therein And therefore ordained the Town of Inverness on the other side of the Water to desist from the Moss contraverted and granted Commission to seâ—tle the Parties anent their place in casting in the Moss or in case of variance to Report Iean Dalmahoy contra Hamiltoun of Binnie December 6. 1661. JEan Dalmahoy Charges Alexandee Hamiltoun of Binnie for a Tack-Duty of 2000. merks due to her for her Liferent-lands he Suspends on this Reason that he has taken the benefit of the late Act of Parliament between Debitor and Creditor and this Sum being above 2000. merks stands thereby Suspended for six years The Charger Answers non relevat because the Act extends not to Rents or Tack-Duties of Lands albeit exceeding 1000. Pounds but only to borrowed Sums and other money bearing Annualrent which in Recompence of that forbearance are accumulat with the Principal Sums The Lords found the Act not to extend to Rents or Tack-duties and therefore repelled the Reason Iames Hoom contra Abraham Hoom. Eodem die JAmes Hoom as Assigney to a Reversion and order of Redemption used by the Earl of Hoom against Abraham Hoom pursues Declarator of Redemption and Removing in the same Process The Defender alleadged Absolvitor because the Reversion expressed not Assigneys and therefore the Defender cannot be oblieged to renounce to the Pursuer an Assigney Secondly At the time of the Confignation the Earl required the Wodsetter to Subscribe the Renounciation to a blank Person upon a back Bond declaring the same to the Earls behove which he was not oblieged to do by the Tenor of the Reversion Thirdly No Declarator till the Earl produce the Sum at the Bar seeing he lifted it himself The Lords found that albeit the Reversion expressed not Assigneys yet seeing the Order of Redemption was used by the Earl himself the Assigney had sufficient Right but Decerned the Defender to Renounce only in favour of the Earl and his Heirs but not to Dispone to any other Person as the Earl desired and Declared there should be no Decreet extracted till the Consigned Money were produced and given up neither did they decern in the removing till the Parties were further heard thereupon Alexander Tailzifer contra Sornebeg Eodem die ALexander Tailzifer as Heir appearand to umquhil Tailzifer of Redheus Pursues Mistresse Margaret Forrester his Uncles Relict and Iohn Schaw of Sornebeg her Husband for Exhibition ad deliberandum of all Writs granted not only to the Defunct but also granted by the Defunct to his said Relict or any other Person The Defender alleadged non relevat for Writs granted by the Defunct to the Defender or other Persons because albeit the Pursuer were entered Heir he had no interest for Exhibition thereof unlesse there were Clauses in his favour therein nemo tenetur edere instrumenta contra se and if this were sustained it were the way to make patent all the Charter Chists in Scotland at the Instance of appearand Heirs under pretence to Deliberat but in effect to pick Quarrels and find the weaknesse thereof The Pursuer answered maxime relevat for seeing the Law gives Heirs the benefit of Deliberation they must have the necessary means thereof by Inspection not only of the benefite but also of the burden of the Defunct without which they cannot know num sit damnosa haereditas Especially in this case against a Relict who probably might have had Influence upon the Defunct Husband to grant Right to her that might Evacuat the Heritage And in this case the appearand Heir had a more large Interest to crave Exhibition nor the Heir Entered who could only crave Exhibition for Delivery Transumpt or Registration and so behoved to Libel a peculiar Interest but the appearand Heirs Interest is only ad deliberandum And therefore the Exhibition as medium thereto must reach to all whereupon he ought to Deliberat Especially the Defuncts Debt and albeit it be true nemo tenetur edere instrumenta contra se to found or give Title to the Pursuers Action Yet he having Title by the Law to crave Inspection for Deliberation hath good Interest Yea if he produce a Title in himself he may even force the Defender to Exhibite Writes ad probandum by an incident as well as third Parties to whose Writ he hath no Right save only to bear testimony for him The Lords having heard this Case in their Presence because the Point had been variously Decided as to Writs granted by Defuncts found the Libel Relevant not only for all Writs granted to the Defunct but also granted by the Defunct to his Relict Bairns or Servants in his Family at the time of his Death being such Writs upon which no Infeftment followed for as to these they thought the Registers may give as much Evidence as was sufficient to Deliberate and would not upon this ground open Charter Chists for shewing real Rights and the plurality carryed that even Personal Rights granted to strangers should not be produced hoc modo severals being of the opinion that Debts Discharges and Personal Rights should be thus Exhibite In respect that Heirs in Scotland were lyable simpliciter for all the Defuncts Debts And therefore should have Inspection as well of his Debts as of his Estate as was found before between the Lairds of Swintoun and West-nisbit observed by Dury February 26. 1633. Katharine Kinross contra Laird of Nunthil December 10. 1661. KAtharine Kinross having Charged the Laird of Nunthil for payment of a Bond granted to her first Husband and the longest liver of them two and their Heirs which failzing his Heirs he Suspends on this Reason that she is but Liferenter and the Defunct being Infeft in Fee she would not Renounce but the Heir Which the Lords Sustained and found the Letters only orderly proceeded for the Annualrent The Earl of Roxburgh contra Mcdowal of Stodrick December 11. 1661. THE Deceased Earl of Roxburgh having obtained Decreet of the Commission for the valuation of Teinds in Anno 1635. against Mcdowal of Stodrick this Earl having Right from the Deceast Earl pursues Stodrick for payment of the valued Duty The Defender alleadged no Process because he had intented Reduction of the said Decreet and Improbation of a Procuratory mentionated therein to have been produced by Mr. Robert Trotter warranding him to consent for Stodrick to that Valuation which is the only ground of the Decreet without either Dispute or Probation In which Reduction Terms are taken to produce and being prejudicial to this Action it must be first Discussed The Pursuer answered that there can be here no prejudiciallity which is only betwixt two Principal Actions but here res est judicata by a Decreet
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
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
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
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed no
that Term was past before his Presentation at least before his Institution and Collation 2ly There being but a Decreet of Modification and no Locality The Earl alleadged Locality should be first made and he lyable but for his proportional part of the Stipend The Lords found that the Stipend affected the Teinds and the Minister might take himself to any of the Heretorsâ— in so far as he had Teind and therfore sustained the Condescendence and ordained the Charger to prove what Teind my Lord had without prejudice to him to crave his Relief Lady Craig and Greenhead her Husband contra Lord Luire Decemb. 7â— 1664. THe Lady Craig being Infeft in Liferent pursues her Tennents Compearance is made for the Lord Luiâ—e who Appryzed the Lands of her Husband and alleadges that he ought to be preferred because he stands publictly Iâ—feft and any Right the Lady has is but base holden of her Husband and before she attained Possessionâ— he was publickly inâ—eft It was answered for the Lady that her Husbands Possession is her Possession and so her Infeftment was cled with Possession from the Date thereof It was answered that that holds only in the case of an Infeftment to a Wife upon her Contract of Marriage but this was but an additional gratuitous Infeftment stante matrimonio she being competently provided before by her Contract In which case such Provisions cannot prejudge Lawful Creditors neither can the Hushands Possession give the benefit of a possessory Judgement to the Wife unless she had Possessed seven years after his Death The Lords found that such Infeftments as these being gratuitous and voluntar could not be prejudicial to the Husbands Creditors nor give the Wife a possessory Iudgement And the case here being with a Creditor of the Husbands they did not proceed further to consider and determine if the Husbands Possession in such a case would not validat the base Right as to any acquired Right thereafter Eccles contra Eccles. Eodem die IN an Action of a Compt and Reckoning betwixt these two Infants It was alleadged for the Defender that he being pursued upon his Fathers back-bond oblieging him to make Compt and Payment of the means of umquhil Fergus Eccles his Brother to Thomas Ecclesâ— and umquhil Andrew Eccles the Pursuers Father It was answered upon condition that Mr. Hugh the Defenders Father should have the third part to himself The Question was concerning the manner of Probation The Pursuer alleadged it was only probable scripto he being a Pupil and his Father dead The Defender alleadged it was probable by the Tutors Oath being so likely in it self that Mr. Hugh being the third Brother should have the third share and that Thomas the Tutor did accordingly allow him the third share and there was produced a Testificat of Balloche that there was an agreement Notwithstanding whereof the Lords refused to take the Tutors Oath ex officio seing they found albeit it were Affirmative it could not prove against the Pâ—pil Scot in Cairlyle contra Henderson and Wilson December 8. 1664. RItchard Scot having Charged Henderson and Wilson upon their Bonds they Suspend and offer them to prove payment of a part by Witnesses and alleadges that it being the Law of England that Wâ—tnesses can prove to take away Writ that therefore these Bonds being Contracted in England with English men the Suspenders ought to have the same benefit of Probation they would have had if they had been Arrested in England upon their Bonds or pursued there and adduced a Practick of Dury in Anno 1628. The Lords having accuratly Considered and Debated this Case amongst themselves and finding that locus contractus was in England But the Bonds bare expresly a Clause of Registration in Scotland And that such Bonds had been ordinar betwixt Merchants in England and Merchants in Scotland and in no time such a Probation admitted and that it would furnish an ordinary delay in such Cases to the disadvantage of Merchants and hindering of Trade by always offering to prove payment in England by Witnesses which could require long time Therefore they found the reason only probable scripto vel juramento Mr. Cornelius Inglis contra Mr. Rodger Hogg December 9. 1664. MR. Cornelius Inglis pursuing a Removing against certain Tennents near Dumbar upon an Infeftment and Appryzing It was alleadged for the Tennents that they were Tennents to Mr. Rodger Hogg by payment of Mail and Duty to him and he was not called The Pursuer answered non relevat unless the Defenders condescend upon Mr. Rodgers Right which might defend him and them The Defenders answered first that they could not be oblieged to Dispute their Masters Right but he ought to be called to Dispute his own Right 2ly It was insinuat that Mr. Rodger had an Appryzing and a Charge against the Superiour The Lords repelled the Defense unless the Defenders condescended upon such a Right as were valide to exclude the Pursuer being prior to his but the Tennents alleadged no such Right and Mr. Rodgers Charge was posterior to the Pursuers Infeftment Iohn Veatch younger of Dawick contra Alexander Williamson Eodem die JOhn Veatch pursues Williamson upon the Act betwixt Debitor and Creditor for paying to him of his proportional part of the Mails and Duties of Appryzed Lands as coming in pari passu with the Defender by an Appryzing within a year of his The Defender alleadged absolvitor because he has Right to the first Appryzing led before the Act of Parliament betwixt Debitor and Creditor and therefore he has the benefit of the 21. Act of the last Session of Parliament declaring that where an Appryzer for his own Security had redeemed a prior Apprysing and gotten Right thereto before the Act betwixt Debitor and Creditor The said first Apprysing should have the same effect it would have had before the Act Debitor and Creditor and should not come in pari passu The Pursuer answered that behoved only to be understood where the second Appryzer had upon necessity to shun the expyring of the legal redeemed and gotten Right to the first Apprysing which could not be said here because the Debitor being minor the legal had and has a long course to run The Lords sustained the Defense without any such limitation in respect of the express Tenor of the Act of Parliament Robert Learmonth contra Laurance Russel Eodem die RObert Learmonth being pursued by Laurance Russel for the price of Wines and the matter referred to his oath gave in a qualified Oath bearing that the Wines in question were sent to him not to be sold till further order and that therefore he keeped them unsold till the end of the year and when they were in hazard of spoilling sold them for 12 pound Sterling the Tun and that he that sent them was Debitor to him by Bonds and Decreets in a greater sum It was alleadged neither member of the quality was competent not the first because it was offered to be proven that the
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
Disposition ex capute inhibitionis against the Laird of Fairney of all Dispositions made by John Glasfoord to him after her Inhibition he produced a Disposition Holograph wanting Witnesses of a Date anterior It was alleadged that the Holograph writ could not prove its own Date contra tertium The Lords before answer ordained Fairney to adduce Witness and adminacles for astructing the Date he adduced foâ—â— the Town Clerk who deponed he dyted the Disposition and a Town Officer who saw it subscribed of the Date it bears and a third who deponed he saw it subscribed on a Mercat day at Coupar which as he remembred was in March or Apryl 1652. Whereas the Date bears the first of August 1652. But that Glasfoord when he wrot it layed it down upon the Table beside himself and saw it not delivered and it being alleadged that the first of August 1652. fell upon a Sunday The Lords considering that Infeftment was not taken upon the Disposition for three years and that there was no Witnesses deponed upon the delivery found the Witnesses adduced not to astruct the Date of the Disposition and therefore reduced the same Clappertoun contra Laird Tarsonce Eodem die CLappertoun raises a Declarator against Tarsonce for declaring an Appryzing at his Instance against the Pursuer to have been satisfied within the legal by payment of the sums by the Debitor or by Intromission with the Mails and Duties either within the seven years of the first legal or within the three years thereafter during which by the late Act of Parliament Appryzings not expired in Anno 1652. were declared Redeemable or by Sums received from such as bought from the Appryzer a part of the appryzed Lands It was alleadged absolvitor from that member of satisfaction by the intromission during these three last years because the Act of Parliament does not expresly prorogat the Reversion but declares the Lands Redeemable within three years but does express nothing to whom the Mails and Duties shall belong which cannot be imputed against the Appryzer to satisfie the Appryzing because he enjoyed them as his own the Apprizing by the Law then standing being expyred bona fide possessor facit fructus consumptos suos and therefore a subsequent Law cannot be drawn back to make him compt for that which he might have consumed the more lavishly thinking it his own It was answered that Appryzings were odious being the taking away the whole Right of Lands for a sum without proportion to the true value and therefore all Acts retrenching them ought to be favourably interpret especially where the Appryzer gets all his own and therefore the Act declaring them Redeemable must be understood in the same case as they were before and that was either by payment or intromission The Lords Repelled the Defense and sustained the Declarator both as to payment and intromission and as to the sum the Appryzer got for a part of the Land sold by him Irredeemably after the seven years legal was expyred And seing the Acquirer of that Right was called they found it also Redeemable from him upon payment of the pryce payed for it cum omni causa and he to be comptable for the Rents unless the Pursuer would ratifie his Right as an irredeemable Right in which case the price should be accounted as a part of the sums appryzed for Lord Rentoun contra Feuars of Coldinghame Eodem die THe Lord Rentoun insisting in the Declarator of his Right of the Office of Forrestry and of a Threave of Corn with the Fodder whereof mention is made Ianuary 17. The Defenders proponed a second Defense viz. That the Pursuer shewed no sufficient progress from David Ellen but only an Infeftment granted by Ianet Ellen Davids Daughter and so the Pursuers Goodsir upon Ianets own Resignation and albeit there was a Precept of clare constat produced by the Abbot in favours of Ianet yet no Seasine followed thereupon so that Davids Infeftment was not established in the Person of Ianet and consequently could not belong to this Pursuer and the Defenders having gotten their Fews immediatly after Davids Right free of this Burden the Right could not be declared till it were established in the Pursuers Person and if he should now infeft himself the Interruption on the Act of Prescription upon the Summons lybelling upon Davids Right and the progress produced from David would fall It was answered that the Abbot having granted the Infeftment to Ianet upon her own Resignation yet bearing to be expresly to her as heir to David It was equivalent to a Precept of clare constat which does not necessarly require the ordinar form but a Charter infeâ—ting such a Person as heir to such another who was before infeft would be as valide so that in this infeftment of Ianets all being materially included to establish Davids Right in her Person she being acknowledged heir to David albeit it be upon her own Resignation utile per inutile non vitiatur The Defenders further alleadged absolvitor because by several Acts of Parliament infeftments of Kirk-lands before the Reformation are required to be Confirmed by the Pope or the King thereafter Ita est this is Confirmed by neither before the Feuers Right And by another Act of Parliament it is declared that the first Confirmation with the last Feu shall be preferred Ita est the Defenders has the first Confirmation It was answered that no Law nor Act of Parliament required Confirmation of an Office neither was any Confirmation absolutely necessar before that Act of Parliament but the Kirk-men might always have Feued without diminution of the Rental of the Lands as they were the time of the feu but that Act was made in regard that at the time of Reformation the Kirk-men being out of hopes of preserving of Monasteries and Kirk-lands did Feu them to their nearest Friends and therefore the foresaid Act as being correctory of the common Law ought not to be extended to any thing but what is exprest in the Act which is only Feues of Kirk-lands and so would neither extend to an Office as a Baillirie Forrestrie c. nor yet to a Pension or Annualrent neither would it extend to Infeftments by Kirk-men Ward such as most of the Infeftments of this Abbacy and many others are And seing Confirmation was not requisit but the Feu it self was sufficient alone the last Act preferring the first Confirmation takes no place which can only be understood where Confirmations are necessar It was answered for the Defenders that albeit an Office requires no Confirmation where there is nothing given but the Office and Casualities thereof Yet where there is a burden upon Lands given therewith such as this Threave of Oats out of every Husband-land being far above the proportion of a suitable Fee for the Office there being above 111. Husband-lands in the Abbacie and some Forrester-lands following the Office besides other Casualities Confirmation is necessar or else the Abbots might have eluded 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
is enough that the Rebel is Cited and none would be prejudged who were not Cited and any may compear that pleases for their Entress The Lords Repelled the Defense and Forefault the amand given thereupon as being contrair to the common Custom Laird of Philorth contra Lord Fraser Iune 28. 1666. THe Laird of Philorth pursues a Declarator of Property of Lands lying about the Kirk-yard of Rathan and particularly that a part of the Land within the Kirk-yard-dyke is his Property and that therefore the Dyke ought to be Demolished and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke It was alleadged for the Defenders first absolvitor because the Pursuer had homologat the Right of the Kâ—rk as to the Kirk-yard-dyke and all within it in so far as he had buried the Dead of his own Family in the bounds in question and likewise his Tennents The Lords found the former part Relevant but not the latter unless he had been present at his Tennents Burials or otherwise had consented The Defenders further alleadged Absolvitor because the Minister and Parochioners of Rathan had possest the Kirk-yard and Dyke peaceably by the space of 30 years which is sufficient to give them a Right upon this Point There occurred to the Lords these Points first Whether less Possession then 40 years could Constitute the full Right of a Kirk-yard 2ly VVhether less Possession by burying of the Dead could take away anothers Property And whether simply or so as to give him Damnage and Interest 3ly VVhether an Interruption made after the Building of this Dyke by the Pursuers raising Summons shortly thereafter could operate any thing if the Defenders had bruiked since the Interruption by that space that would have been sufficient to Constitute a full Right before Interruption Many were of the opinion that Kirk-yards have as great priviledge as any Kirklands and that in Kirk-lands 10. years Possession before the Reformation or 30. years after according to the old Act of Sederunt of the Lords did Constitute a full Right as well as the long Prescription in other Cases and likewise that in Ecclesiasticis 13. years Possession did Constitute a Right decennalis triennalis possessor non tenetur docere de titulo and that accordingly the Lords were in use to decide in all such Rights But the Point to be decided was Whether Interruption once used endured for 40. years so that albeit 13. years would suffice yet the Interruption long before these 13. would alwyse be sufficient till the Interruption did prescrive by 40. years wherein many were in the Negative that as in a possessoy Judgement on 7. years if Interruption were alleadged it was always a relevant Reply that since the Interruption the Defender has Possest 7. years without Interruption so if 10. or 13. years be sufficient to the Kirk no Interruption preceeding but only such as are done during these years can be sufficient for if 13. years will take away the Solemnest Rights and Writs much more may it a Citation Others were for the Affirmative on this ground that in the short Prescription of 3. years in Spuilzies c. Interruption once used serves for 40. years so it must in this case for he that once Interrupts is alwise holden as continuing in that Interruption until it Prescrive or be otherwise past from But it was answered that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae Church-men seldom have or keep Evidents albeit in other Cases Interruption would only prescrive in 40 years Yet the plurality found that after Interruption no less then 40. years Possession was sufficient but reserved to the Lords the Question anent the ground in so far as dead were buried therein after Probation Iohn Mcmorlan contra William Melvil Eodem die WIlliam Melvil and one Hatter an Englishman both Residing in England gave Bond to Gawin Lourie Residing there after the English Form who Assigns it to Iohn Mcmorlan Melvil Suspends upon this Reason that he had made payment to Gawin Lourie the Cedent which he offered to prove by Gawins Oath and which could not be refused because he offered to prove that it was the Custom of England that the Cedents Oath can never be taken away by Assignation as it is in Scotland but that Assignations are only as Procuratories and that payment might be proven there by Witnesses to take away Writ It was answered that the Law of Scotland must regulate the case because the Assignation is according to the Scots stile and the Debitor albeit Residing in England was a Scots man and knew the Custom of Scotland The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England and so that payment might be proven by witnesses or by the Cedents Oath yet so as the Cedent could not be holden as confest but the Debitor or Suspender behoved to produce him and move him to Depone Wherein the Lords so Declared because they were informed that the Suspender proponed the Alleadgeance because the Cedent was Quaker and would not swear at all Duke of Hamiltoun contra Duke of Buckcleugh Eodem die THe Duke of Hamiltoun as Collector of the Taxation having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith He Suspended upon this Reason that the King Possest these Lands Himself the years of the Taxation and so cannot demand them from the Suspender who is a Singular Successor The Charger answered that he had the Taxation from the King for a Cause Onerous viz. a Debt The Lords found the Reason of Suspension Relevant Dougal Mcpherson contra Sir Rory Mcclaud Iune 29. 1666. DOwgal Mcpherson pursues Sir Rory Mcclaud for payment of a Sum upon his promise and the Summons bears a Warrand to Cite him at the Mercat Cross nearest the place of his Residence being in the lsles whereupon the Pursuer craved him to be holden as confest The Defender alleadged that he was not Personally apprehended and so could not be holden as consest and that this Citation at the Mercat Cross was periculo petentis and not to be Sustained in the time of Peace when there was no Trouble in the Countrey The Lords found that Warrands for such Citations ought not to be granted by common Bills of course but only by the Lords upon special Bills in presentia but seing the Defender compeared they allowed his Procurator a long time to produce him Ianet Kid contra Dickson Eodem die JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar made by her Father on this Ground that the Disposition is subscribed but by one Nottar and one Witness and the Charter by one Nottar and two VVitnesses and so is null by the Act of Parliament requiring two Nottars and four VVitnesses in VVrits of importance It was answered that the Tenements being small the price of one exprest being 200. merks and the other 300. merks the foresaids two
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
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâ—ur jure privato and albeit noâ— voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
all probable by Witnesses The Lords found the Disposition null and that the subscription of these two Notars not bearing that it was by Command could not be supplied by the Witnesses insert unlesse it had been the subscription of an Connotar Subscribing at the same time with a Notar whose Subscription bore Command Here it was Debated whether the Subscriptions of Notars at divers times were sufficient or if the Subscription of a Notar who was not authorized by the English and did forbear to Act at that time were sufficient but the former Vot made these to be undecided as not necessar seing the Writ was annulled by the former Vot Sir George Prestoun contra Sir Iohn Scot Iuly 1667. SIr Iohn Scot having pursued for payment of an Annualrent of 500. Merks out of Sir Iohn Prestouns Lands he alleadged payment thereupon Liâ—â—scontislation being made he produces three Receipts each 500 pounds bearing to an Accompt and alleadged that the odd fifty Merks was for publick Burden which compleating three years must Assoilzie from bygones It was answered the Discharges bore to be but granted by a Factor which was not probative and that they wanted Witnesses and that being given by a Factor they could not infer payment of all proceeding It was answered that Discharges of Annualrents or Rents are sufficient without Witnesses The Lords found that Discharges to Tenents were suffiâ—ient without Witnesses but not being granted by an Annualrenter to an Heretor and found that the Factors Discharge could not inâ—er payment of bygones The Owners of the Ship called the Castle of Riga contra Captain Seatoun Eodem die CAptain Seatoun a Privateer having taken a Ship at Sea she was declared Pryze at Cromarty the Owners pursue Reduction of that Decreet before the Admiral at Leith who Assâ—â—â—zied from the Reduction and adhered to the Dâ—creetâ— the Owners now pursue a Reduction of both these Decreets upoâ— this Ground that by the Treaty betwixt the King and the King of Sweden it is expresly declared that if any Swedish Ships having a Passe from the Kings Council or Colledge of Trade or Governour of the Province where frae she Louseth she shall not be questioned nor any Inquiry anent the Goods or Men and that because by the said Treaty it is Agreed that the said Passes shall expresly contain that the Ship and whole Goods belonging to the Subjects of Sweden contained no Counterband Goods and that upon Oath taken at the obtaining of the Passe na est the Governour of Livinia wherein Riga lyes hath given a Passe bearing that the Owners of the Ship called the Castle of Riga being Citizens of Riga did make Faith that Ship being then at Amsterdam did truely belong to them and was Loaded with their Goods only and was direct to France for a Loading of Salt to be returned to Riga and that there is produced an Extract out of the Admirality of â—rance bearing Faith to have been made that the Ship nor Goods nor any part thereof did not belong to the French nor Hollanders and a Certificat from the Swedish Resident in Holland Registrat in the Office of Admirality in England bearing this Ship to be a ship belonging to the Swedes and yet she was declared Pryze upon this ground only that the Sea-men did acknowledge they were Inhabitants in and about Amsterdam and that some of them Deponed that the ship was a Dutch bottom and one of them Deponed that they were paved by the Skipper who received the Money from a Water Bailzie in Amsterdam without proving that the ship or goods belonged to Hollanders which could not have been ground seing the Passe and Treaty did Exeem them from giving an Accompt or Inquiry anent their Mariners It was answered for the Defenders that all these Passes and Papers were a meer Contrivance and â—alls not in the Case of the Treaty because the ship Loused not from Riga but from Amsterdam and the Pass did not contain the particular Goods and Quantities according to the Conditions of the Treâ—ty and that the Testimonies proved that the ship had on a Dutch Flag that she came hot by the Channel but about the Back side of England and that the Company was afraid to meet with Scotish and English Privateers and having met with a ship in their Course asked for the Dutch Fleet calling it their own Fleet all which were strong Evidences that the ship belonged to Holland It was answered that albeit the Pass mentioned not the particular Goods which it could not do the ship being but to be Loaden the Certificat did abundantly supply that expressing the Loading as for the presumptions they are of no force because the Skipper though a Dutch-man yet was sworn a Citizen of Riga and might justly be more afraid of the English and Scots then of the Dutch and they might call the Dutch Fleet their own Fleet as being of their Nation at last they produced a Letter of the Kings bearing that His Majesty knew by sufficient Information that this was a ship belonging to Sweden and both by it and by a former Letter did peremptorly Command the Delivery thereof and the Goods It was answered the Kings Letter was impetrat upon false Information and if His Majesty had known the true state of the Case as it now stands in the Evidence He would not have so Written nor doth His Majesties Letter granted inaudita parte prejudge the privat Rights of his Subjects The Lords found that the Testimonies of the Witnesses did not prove that the ship and goods belonged to any of His Majesties Enemies and therefore in respect of the Pass Certificat Treaty and His Majesties Letter they Reduced both the Decreets Iuly 31. 1667. THis Cause being again Debated it was alleadged that the former Interlocutor having proceeded mainly upon His Majesties Letter there was no ground to proceed thereupon because it was granted inaudita parte and Acts of Parliament being done by His Majesty without consent of of Estates prejudge no party as to their privat Right but such as are called much less Letters thus impetrat upon importunity and groundless Representation and this Letter is Derogat by a posterior general Letter to the Lords Recorded in the Sederunt warranding the Lords to proceed And as to the Swedish Treaty it can never be understood further then as to Counterband Goods which are the Native Commodity of the Swedish Dominions for albeit some of these be dispensed to the Swedes because most of the Growth of their Countrey is such yet it cannot be extended to this Case where the Swedes Loadned Counterband Goods in Norway and carry them to France both being His Majesties Enemies neither can the Pass be sufficient except as to such ships as are within Sweden and where the particular Goods upon Oath are Attested and expressed in the Pass neither of which is in this Case It was answered that they opponed the former Interlocutor and that a solemn Treaty with so considerable an Allie
contra the Magistrats of Queens-ferry Ianuary 2. 1668. ARchibald Wilson being Elected on of the Baillies of the South Queens-ferry and being Charged to Accept and Exerce the Office Suspends on this Reason that by the 29. Act Parliament 5. King Iames the 3. No Magistrate of Burgh is to be continued in Office longer then one year and by a particular Act of that Burgh no Magistrat is to continue above two years and true it is that the Suspender hath served as Baillie two years already It was answered that the Act of Parliament is long since in desuetude and as to the Act of the Burgh the Election of the Suspender being done by them who have power to make that Act is in effect an alterationt hereof and this Burgh being poor and penury of persons to Serve it will dissolve the same and discourage all others to Serve if the Suspender be Liberat. The Lords found the Reasons of Suspension relevantâ—â— and found that the Suspender could not be compelled to serve longer then one year at once in the same Office Dow of Arnho contraâ— Campbel of Calder Ianuary 4. 1668. DOw of Aricho having pursued Campbel of Calder as Heir to his Father for payment of a Bond wherein his Father was Cautioner for the Marquess of Argyl the Bond bore but one Witnesse to Calders subscription and George Campbel one of the Witnesses being Examined if he saw him subscribe Deponed negative but that it was Calders hand Writ to the best of his knowledge there was also other writs produced subscribed by Calder to compare the subscriptions The Lords would not sustain the Bond having but one Witnesse insert to Calders subscrsption upon the foresaid Testimony and Adminicles Mr. Iohn Forbes contra Innis Ianuary 1. 1668 MAster John Forbes as Assigney to Margaret Allerdes having obtained Decreet of Removing against Margaret Innis for Removing from the Lands of Savet wherein the said Margaret Allardes is Infeft in Liferent which being suspended It was alleadged first That this pursuâ—e is to the behove of Margaret Allerdes who could not obtain a Removing against the Defender because the Defenders Husband being Infeft by the said Margaret Allardes Husband and Author of the Lands of Savet principally and of the Lands of Govan and others in Warrandice The said Margaret Allardes did consent to the Disposition of the Warrandice-lands by which she obliged her self to do no Deed in the contrair of that Right and is also bound in Warrandice with her Husband ita est her pursuing this Action is a Deed in prejudice of the Right of Warrandice-lands in so far as thereby the Person having Right to the principal Lands upon Eviction recurrs upon the Warrandice-lands and so the Consenters own Deed prejudges the same It was answered that by Deeds contrair to Warrandice were only understood some Right granted by the Disponer or Consenter in prejudice of the Right consented to but no wayes a pursute upon any other Right of the Consenter for it were against Reason and Justice that a Purchaser to make himself secure requiring a Wifes consent to Lands to which she had no Right either Principal or in Warrandice of other Lands that her Consent should prejudge her as to her Liferent lands of which there was no mention and as to her Personal Obligement to Warrand the Lands wherein she was never Infeft it is null and can never oblige her being a Wife The Lords found that this Warrandice did not oblige the Wife and that her Consent did not hinder her to pursue upon her own Liferent albeit ex consequente her pursute excluded one having a posterior Right to her Liferent-lands who thereupon had recourse to the Warrandice-lands to which she Consented seing she had granted no Right prejudicial to the Right Consented to It was further alleadged that the said Margaret Allardes agreed with the Person having Right to her Liferent-lands principally that she should accept the Warrandice-lands in stead of her Liferent-lands which excambion putting the Right of the Warrandice-lands now in her Person she who consented to the Right thereof can never come in the contrair of her own Consent to prejudge the same It was answered that a Consâ—nt cannot exclude any supervenient Right of the Consenter but only such Rights as the Consenter had the time of the Consent it is true that a Disponer with absolute Warrandice if he acquire a Right it accresces to his Successor but it is not so in a Consenter whose warrandice is not found to be Obligator further then as to the Rights in the Consenters Person at that time Which the Lords Sustained It was further alleadged that the Pursute as to the behove of the Heir of the Disponer of the Lands in question whose Predecessor being bound in absolute Warrandice he can make no use of no Right prejudicial to his Warrandice 2dly Albeit he be not Heir yet he hath behaved himself as Heir and thereby is lyable to fulfil the Defuncts Warrandice and so cannot come against it It was answered that behaving as Heir being a vitious passive Title is not sustainable by way of exception in this case The Lords Sustained the same and found both members of the alleadgeance relevant Margaret Forbes contra 〈…〉 Eodem die MArgaret Forbes having granted a Tack of her Liferent-lands to 〈…〉 bearing expresly for payment of such a Sum of Money and bearing to endure for 19. years she did receive a Back-bond of that same Date bearing that so soon as the Sum was payed the Tack should become void the Tack coming to a singular Successor she pursues him for Compt and Reckoning and Removing and insists upon the Tenor of the Tack and Back-bond It was alleadged for the Defender that the Back-bond did not militat against him being a singular Successor neither being Registrat nor Intimat to him before his Right in respect the Tack is a real Right and no Obligement or Provision of the Tacks-man can prejudge a singular Successor The Lords Repelled the Defense and Sustained Processe against the Defender in respect of the Tack and Back-bond The old Lady Clerkingtoun contra Clerkingtoun and the young Lady Ianuary 9. 1668. THe old Lady Clerkingtoun being Infeft in an Annualrent of seven Chalders of Victual out of the Mains of Clerkingtoun for thirty six years bygone she pursues a Poinding of the ground It was answered for the Laird and his Mother that the Pursuer having been so long out of Possession cannot make use of a Possessory Judgement but must first declare her Right 2dly The young Lady is also Infeft in an Annualrent and hath been by vertue thereof more then seven years in Possession and so hath the benefit of a Possessory Judgement till her Right be reduced and cannot be Dispossest by the old Ladies posterior Infeftment The Lords Repelled both the Defenses and found that an Annualrent is debitum fundi and is not excluded by Possession of a posterior Right and needs no Declarator and
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
Suspenders Oâ—th or VVrit The Lords fâ—und that the granting of the Bond was no Hâ—mologation of the Decreet but that â—e might quarrel the same and that the giving of the Bond was no Transaction if he payed or gave Bond for the whole Sums contained in the Decreet but found that â—f in consideration of the Grounds upon which he might quarrel the same he had gâ—â—â—en an abatement by Arbitration or otherwise that he could not quarrel the same and found it only probable by his Oath or â—â—rit Iames Donaldson contra Harrower Eodem die JAmes Donaldson pursues Iohn Harrower as representing his Father for whom the Pursuer became Cautioner to the Lord Rollo for 100. pound for relief of the Defuncts Goods that were then a poinding for which the Defunct promised payment and did pay the Lord Rollo and produces a Testificat of the Lord Rollo's thereof and craves payment and offers to prove the Libel by VVitnesses the Libel not being above an hundred pound It was alleadged for the Defender that this being a Cautionry and a Promise it was not probable by VVitnesses especially after so long a time the Promiser being dead who might either qualifie the Promise or instruct payment there being nothing more ordinar then to Transact such Affairs without any VVrit The Lords found the Libel not probable by Witnesses Frazer contra Frazer Eodem die JOhn Frazer having obtained a Decreet against William Frazer his Brother to deliver a Tack of the Lands of Boghead granted to their Father and his Heirs to whom the said Iohn is Heir William Suspends on this Reason that he is Heir to his Father of the second Marriage and produces his Retour and produces the Contract of Marriage including a Clause that all Tacks Conquest during the Marriage should belong to the Heirs of the Marriage and this Tack being Acquired during the Marriage the same belongs to him and albeit it he conceived to the Heirs generally yet by the Contract the Pursuer as Heir general will be oblieged to Assign It was answered that this Tack was no new Conquest but had been the old Possession of the Father and the Tack bare the Lands to be presently possest by him The Lords found this Tack to fall under the Clause of Conquest unless the Pursuer prove that there was an old Tack standing which expyred not till the second Marriage was Dissolved in lieu whereof this new Tack was taken Hamiltoun contra Callender Iuly 7. 1668. JAmes Hamiltoun having taken his Debitor with Caption offered him to Iames Callender Baillie of Falkirk to be Incarcerat in the Tolbooth of Falkirk and he refusing he now pursues a subsidiary Action against the Baillie for payment of the Debt who alleadged Absolvitor because he is no Magistrate of a Burgh Royal but of a Burgh of Regality the Baillies whereof were never in custom to be Charged with Rebels The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expresly Baillies of Stewartries and Regalities according to which the Tenor of all Captions bears the Letters to be direct against all Baillies of Regalities The Defender answered that for the Letters it is but stylus curiae and for the Act of Parliament the Narrative and Reason thereof relates only to Burghs having Provest Baillies and Common Good The Lords having considered the Act of Parliament Repelled the Defense and Decerned here the Rebel was Residenter within the Burgh of Regality where there was known to be a convenient Prison Relict of William Pattoun contra Relict of Archibald Pattoun Eodem die THE Relict and Executors of William Pattoun pursues the Relict and Executors of Archibald Pattoun for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald and craves the Defender to produce Archiâ—alds Compt Books who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam â—item so that the desire was no wayes reasonable unless the Pursuer had given in a particular Charge and Litiscontestation had been made thereon in which case the Defender might have been compelled ad modum probationis to have produced the Books It was answered the contrair was found in the Compt and Reckoning betwixt the Children of George Suiâ—ty against the Representatives of William Suitty their Tutor and that there was as great reason here the two Defuncts having been Brothers and being in Copartnery together and the one Factor for the other It was answered that the case of a Tutor and his Pupil was no way alike because the Tutors Compt Book was in effect the Pupils and the Copartinery and Factory was denyed The Lords ordained the Book to be put in the hands of the Auditor and if he found by inspection thereof any Accompts appeared as betwixt Partners and Factors he should produce the same to the other Party even ad fundandam litem otherwise that the same should be given back and not showen to the Pursuer Margaret Alexander contra Laird of Clackmannan Iuly 9. 1668. MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie by a posterior Infeftment in Corroboration of the former Right she was Infeft in that same Annualrent out of other Lands whereof she was in Possession but this posterior Infeftment being Reduced upon an Inhibition prior thereto she pursues poinding of the Ground of the Lands of Sauchie upon the first Infeftment It was alleadged for Clackmannan Absolvitor because the Pursuers Right of Annualrent is base never cled with Possession and now he is Infeft in the Lands either publickly or by another Infeftment cled with Possession The Pursuer answered that the Infeftment in the Lands of Sauchie was sufficiently cled with Possession in so far as the posterior Infeftment of Annualrent in Corroboration thereof was cled with Possession and as payment made by the Heretor by himself for his Tennents or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession so payment made by his Tennents by the posterior Infeftment in Corroboration can be no worse then an Assignation to the Mails and Duties of these Lands which as it payes some Terms Annualrent of the first Infeftment so it must cloath it sufficiently with Possession It was answered that here being two distinct Infeftments at several times albeit for the Annualrent of the same sum yet the Possession of the last cannot relate to the first The Lord Repelled the Defense in respect of the Reply and found that Possession by the last Infeftment did from that time sufficiently validat the first Heugh Boog contra Robert Davidson Eodem die HEugh Boog having arrested Robert Davidsons Fee as Keeper of Herlots Hospital Pursues the Town of Edinburgh to make it forthcoming It was alleadged for Robert Davidson Absolvitor because Robert Davidson had made cessionem bonorum in favours of this Pursuer and his other Creditors and thereupon was Assoilzied The Pursuer answered that a Honorum did no
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
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
Appryzing to be led ten years after his Commission and now having taken Right to the Appryzing himself he cannot therewith Exhaust the price especially against this singular Successor having acquired bona fide after a Decreet of Suspension in foro contradictorio when the Defender had Right to the said third Appryzing and alleadged nothing thereupon The Defender answered that he cannot be Excluded from his Defense by the Decreet of Suspension as being competent and omitted the time of that Decreet because Competent is only Relevant against Decreets in ordinary Actions but neither in Reason nor Custom is the same Relevant against Decreets of Suspension there being this evident difference that in Decreets of Suspension the Reasons must be instantly verified but in ordinary Actions there are Terms assigned for proving Defenses and so it hath ever been practised by the Lords The Pursuer answered albeit it was anciently the Custom to admit Competent and omitted only against Decreets upon ordinary Actions Yet by an Act of Sederunt in Anno 1648. or 1649. the same was extended to Decreets of Suspension and albeit through neglect of the Clerks the Act hath not been Booked The Session being interrupted by the War shortly thereafter ensuing yet it is notorly known and was in practice Anno 1653. when the Decreet was obtained against this Defender whereupon the Appryzing proceeds and that practice was both just and necessar for if Decreets might be Suspended as oft as the Suspender can produce another Writ the most solemn Sentences should be made Insignificant for the ground of Excluding things Competent and omitted is not only that publick Sentences upon compearance are as valid as Transactions which upon no pretence can be Rescinded that Pleas be not perpetual but also because they are omitted dolo animo protrahendi litem which is ever presumed unless another Cause be assigned wherefore they were omitted as noviter veniens ad notitiam which is Sustained even as to Decreets in ordinar Actions and if in no case competent and omitted be allowed in Suspensions we shall have no more Decreets in ordinar Actions but the Defenders will still be absent and will Suspend as oft as they can find different Grounds as if of one Sum one have twenty or thirty several Receipts he will raise as many subsequent Suspensions which will at least serve for as many Sessions and though it should be alleadged quod dolo omisit it would not be Relevant so that if the Suspender can purge his Fraud either as not knowing of the Writ whereon he hath again Suspended or as not then having it presently in his power to instruct it would be sufficient which clears the difference betwixt Decreets of Suspension and other Decreets to operat no further than that in Suspensions the Fraud is purged by showing that the Writ was not ad manum which is not so in ordinar Actions where Terms would have been assigned to get the Writ and albeit the Lords might by modifying great Expences bar the multitudes of Suspensions they could hardly do it justly if of the Law it were no fault and it is known the Lords are neither in use of nor have time for such modifications The Lords superceeded to give answer as to this Point till the Compt proceeded as to the Particulars but the Lords had no respect to the alleadgance upon the Inhibition seing no Decreet followed nor upon the Decreet Arbitral which they found not Equivalent to an Assignation or Precept but the Lords found the Commission contained in the minute not to oblige the Defender as to any Diligence and therefore found that as to that Point he might acquire the third Appryzing which would have excluded him albeit he might have prevented it by Diligence Mr. Robert Swintoun contra Iohn Brown December 18. 1668. MArgaret Adinstoun being Infeft in Liferent in certain Roods of Land near Hadingtoun she and her second Husband grants a Tack to Iohn Brown thereof for certain years and thereafter till he were payed of 400. merks owing to him by the Husband after that Husbands Death she being Married to a third Husband there is a Decreet of Removing purchast at her and that Husbands Instance against Iohn Brown but the Husband did not proceed to obtain Possession by vertue thereof but brevi manu Ejected Brown whereupon Brown obtained a Decreet of Re-possession now the said Margaret Adinstoun having assigned the Decreet of Removing to Mr. Robert Swintown he Charges Iohn Brown to Remove who Suspends on this Reason that he having obtained Decreet of Re-possession after the Decreet of Removing upon the Husbands violence cannot now be Removed without a new Warning The Charger answered that the Decreet of Re-possession bearing to be ay and while this Suspender was legally Removed and that in respect he had been put out Summarly and not by the preceeding Decreet of Removing which having now taken effect he being in Possession the Charger may very well Insist that he may now legally Remove by vertue of the Decreet of Removing The Lords Repelled this Reason in respect of the answer and found no need of a new Warning The Suspender further alleadged that he cannot Remove because he bruiks by vertue of a Tack granted by Margaret Adinstoun and her second Husband The Charger answered First That the Tack being only for four years specially and an obligement not to Remove the Tennent while the four hundred Merks were payed which is not a Tack but a personal obligement which cannot defend the Suspender against Mr. Robert Swintoun the singular Successor 2dly The Tack is null being Subscribed but by one Nottar The Suspender answered that a Right of Liferent not being Transmissible by Infeftment but only by Assignation the Assigney is in no better case nor the Cedent except as to the Probation by the Cedents Oath 3dly The Tack is Ratified judicially by the Wife in the Court of Northberwick which is more nor the concourse of any Nottar 4ly If need beis it 's offered to be proven by the Wifes Oath that the Subscription was truly done by the Nottar at her command The Charger answered that the judicial Ratification cannot supply the other Nottar because the same Nottar who is Nottar in the Tack as also Nottar in the judicial Ratification which is but done in a Baron Court So it is but assertio ejusdem notarij no stronger nor it was neither can it be supplyed by Margaret Adâ—â—stouns Oath de veritate facti because her Oath cannot be received in prejudice of her Assigney and though her self were Charger the Law requiring two Notâ—ars till both Subscribe the Writ is an unsubscribed Writ and in all matters of this nature parties may resile before Subscription The Lords found the Tack valid against the Wife Subscriber thereof and her assigney ay and while the sum thereof were payed but found the Tack was null as being but by one Nottar notwithstanding of the judicial Ratification being by the same Nottar
Reversion and the Liferents in favours of Mr. Iohn and also his own power of preference of the Creditors and Mr. Iohn his Infeftment upon the Disposition whereupon he alleadged that he ought to be preferred to the Mails and Duties because he stands publickly Infeft by vertue of the said Disposition before any Infeftment in the Person of the Pursuer It was answered for the Pursuer that the Infeftment produced cannot Exclude him because it is expresly granted for satisfying of the Sum whereupon his Infeftment proceeds It was answered for Mr. Iohn Prestoun that he having a power to prefer any Creditor he pleased he payed other Creditors to the value of the Estate whereby Newman is excluded It was answered for Newman that this Disposition was fraudulent and fimulat in prejudice of lawful Creditors whereof he has Reduction upon the Act of Parliament 1621. as being granted by a Brother to another with a power of preference of Creditors at the Purchasers option which Clause is altogether null especially as to the preferences done since lawful Diligence was used by this Pursuer by Horning Inhibition Arrestment and Appryzing and as no Debitor can so prefer himself so neither can he give such a power to any other and therefore the Pursuer ought to be preferred to all the Creditors conform to his Diligence It was answered for Mr. Iohn Prestoun that there being no Diligences done before the Disposition by any Creditor Craigmiller might Dispone being for an onerous Cause as he pleased and might prefer one Creditor to another 2dly Albeit this power of preference were not simply to be allowed after Diligence done by Creditors to prefer others to them Yet it ought to be Sustained in so far as Craigmiller might lawfully have done viz. to prefer Mr. Iohn for the Sums due to himself and for his relief of such Sums as he was Cautioner in The Pursuer answered that such a Disposition was not made nor doth this Disposition any way relate to Mr. Iohns Sum and his Relief but generally and equally to all and there is no difference but the unwarrantable power of preference which can have no effect after Diligence done The Lords found the power of preference not to be Sustained as to any other Debts then to such as were due to Mr. Iohn himself and for which he was Cautioner before the Disposition and found as to these that the power of preference was lawful and valide and was equivalent to this Clause with power to Mr. Iohn to satisfie himself and those to whom he was Cautioner primo loco Wallace of Galrigs contra Mckernel Ianuary 9. 1669. UMquhil Wallacâ— of Galrigs being alleadged to have given a Seasine propriis manibus to his second Wife of two Chalders of Victual The Lords Sustained the Seasine without any other Adminicle But that the Wife had quite her former Liferent by a former Husband in favours of Galrigs whereupon Galrigs offered to improve the Seasine by the Witnesses insert which being four two Deponed positively that they were never Witnesses to a Seasine given by Galrigs to his Wife and the third Deponed that he remembred not that he was Witness the fourth Deponed that he was Witness but said that this Seasine was in Summer whereas it bore to be in Winter the Nottar abode by the Seasine but was not Examined The Lords found the Seasine improven but would not Examine the Nottar nor any other Person mainly in consideration that the Seasine was prâ—priis manibus without any other Adminicle otherways the Nottar and one Witness affirming the Lords would have Examined the Nottar or any other persons or Evidences for astructing the verity of the Seasine George Hume contra Seaton of Menzies Ianuary 13. 1669. GEorge Hume as Assigney by the Earl of Wintoun to a Bond granted to the Earls Factor for his behove having Charged thereupon The Creditor Suspends in Discussing whereof it was alleadged for George Huâ—â— that he ought to have Annualrent because the Suspender by a missive Letter produced written to the Umquhil Earl of Wintoun obliged him to pay Annualrent for the time by gone and therefore ought to continue the same till payment The Suspender answered it contained nothing as to the Annualrents in time coming The Lords found Annualrents due from the beginning both before and after the Letter though they exceeded the Principal Sum seing once Annualrent was promised for some Terms Alexander Mckenzie of Pitglasse contra Ross of Auchinleck Ianuary 14. 1669. ALexander Mckenzie having Right to two Compryzings of the Lands of Auchinleck one in Anno 1644. and another in Anno 1647. which being alleadged to have been satisfied within the Legals and the matter referred to an Auditor who reported these Points to the Lords First Whether the Appryzer should Compt for the Mails and Duties so as to impute the same to both Appryzings as to years after the second Appryzing or to impute them wholly to the first Appryzing during its Legal and then to the second Appryzing during its Legal It was alleadged for the Appryzer that he having two Titles in his Person it was free for him to impute his Possession to either of them and yet he was so favourable as not to crave his option but to impute proportionally to both albeit in Law when Receipts are not specially as to one Cause electio est Debitoris 2dly When any payment is made by a Debitor to his Creditor indefinitly it is still imputed to the Annualrents in the first place before it can satisfy any Stock so that any satisfaction gotten by him must first be imputed to the Annualrent of both the Sums and then to the Stock of the first It was alleadged for Auchinleck that the Intromission could only be attribute to the first Appryzing First Because by that Right the Appryzer entered in Possession and cannot invert his Possession to a third Parties prejudice 2dly The first Appryzing est potior jure for if the two Appryzings were in different Persons he that had the second could never attain Possession against the first 3dly In dubio solutio est imputanda in duriorem sortem and therefore to the first Appryzing for if imputation be made to both the first Appryzing will not be satisfied within the Legal and the Debitors Right will be taken away which is most infavourable 4thly The Appryzer as he did not Possess by the second Appryzing so he could not because the first Appryzing carries the Right of Property and the second carries only the Right of Reversion The Lords found the Possession was only to be attribute to the first Appryzing and not to the second while the first were satisfied The next point was that it was alleadged the Appryzer had sold a part of the Lands within the Legal and therefore the worth of these Lands ought to be allowed in satisfaction of the Sums It was answered that the Appryzer could not Dispone the Lands simply but only his Right of Appryzing which
a perpetual Tack and would not Sustain the samine in part and found it totally null and that the Receiving of the former Duties was no Homologation thereof Captain Wood contra Boyneilson Eodem die CAptain Wood having taken a Ship of Norway whereof Boyneilson was Master called the Raphael Prize she was Adjudged by the Admiral and there is now Reduction intented of the Decreet of Adjudication in fortification whereof the Privateer Insists upon two grounds First That this Ship belongs to the Kings Enemies with a considerable part of the Loadning viz. 1500. Dails as is acknowledged by the Skippers Deposition 2dly Whereas she pretends to have been bound for London upon the Kings Proclamation giving liberty to all his Subjects to import Timber from Sweden and Denmark by the Ships and Mariners in these Countreys though then in Enimity yet the said Proclamation requires that all such Ships shall find Caution at the Custom-house to return straight to England without going aside into an Enemies Countrey and requires the Lord Admirals Pass but this Ship at the time of the Adjudication did not pretend to the Duke of York's Pass but only to the Duke of Richmond's Pass as Admiral of Scotland whereas the Proclamation warrands only the Duke of York to give such Passes neither doth he produce now any Pass from the Duke or any extract of a Pass from him It was answered for the Strangers and for Iohn Dyson Citizen of London that they having Contracted conform to the Kings Proclamation for importing Timber and having found Caution and obtained a Pass conform to the Proclamation the Ship and Loadning cannot be made Prize upon the Skippers Oath that they had Aboard 1500. Dails belonging to him and the Company First Because the Skipper is testis singularis 2dly By the constant Custom Sailers have Portage Dails allowed 3dly The number of the Dails is insert but with Figures and might easily have been altered after the Testimony from 500. by adding one and from 150. by adding a Cipher neither of which would have been sufficient to infer Confiscation 4thly Iohn Dyson Citizen of London having bona fide Contracted with the Stranger for importing 6000. Dails albeit the Skipper had foisted in some more it cannot infer a Confiscation of a Loadning belonging to him the Kings Subject Contracting bona fide whatever it may infer as to the Strangers Ship and his own Dails As to the second point anent the wanting the Duke of Yorks Pass there is produced a Testificat of the Dukes Secretaries and the Ship having been Bought from the Privateer by Captain Lye who carried her to London the Duke gives her a Pass to return from London to Norway bearing that he had given her a former Pass to come into England there is also produced His Majesties Letter that he is sufficiently informed that this Ship is Authorized by a sufficient Pass and therefore ordering her to be Restored with Testificats from the Customers that Caution was found there and the Testimony of the Skipper and a Sea-man taken at London bearing that Captain Lye having Bought the Ship from a Privateer desired the Skipper then in Prison to show him the Duke of Yorks Pass which when he shew'd him he pulled it out of his Hand to secure the Ship against all which it was objected that all these were impetrat after the Ship was declared Prize and that it is the more suspitious that at the time of the Adjudication there was not so much as mention made of the Duke of York's Pass though the Duk of Richmonds Pass was rejected as not sufficient without the Duke of Yorks and that as yet there is no Extract of the Pass out of any Record and as for his Majesties Letter it hath been impetrat suppressa veritate and cannot take away a Parties privat Right but is salvo jure as are all Acts of Parliament done by His Majesty and three Estates incitata parte much more such a Letter as the Lords found in the case of the Castle of Riga and though there had been a Pass from the Duke of York it is likely not to have been of this Date but for a former Voyage The Lords found the alleadgeance for the Privateer that there was 1500. Dails Aboard belonging to the Kings Enemies Relevant to Confiscat the Ship and Dails but not to Confiscat Iohn Dysons Dails His Majesties Subject who acted bona fide if he can make out a Pass and before answer to that point grants Commission to Sir Robert Murray to try if there were a Record keeped of the Dukes Passes and if therein there was a Pass for this Voyage and to send down the duplicat thereof compared with the Principal and Signed by Sir Robert and to try at the Records of the Custom-house if Caution was found there and if there was no Records of Passes to take the Oath of Captain Lye concerning the Pass alleadged taken by him and ordained the Members of the Court of Admirality to be Examined upon Oath whether the Testimonies in Figures for 1500 Dails was given in Figures as it bears and found the Skippers Testimony alone to prove not only against himself but the Owners because he was entrusted by them in this Affair Duke Hamiltoun contra the Feuars of the Kings Property Iuly 14. 1669. THe Duke of Hamiltoun as Collector-general of the Taxations having Charged the Feuars of the Kings Property for payment of this current Taxation several of them Suspended upon this Reason that by the Act of Convention there is abatement given of a third part to such Shires as in the West and South in regard their Retours are higher then the rest of the Countrey and yet these of the Kings Property are Charged for the whole It was answered that that abatement cannot extend to the Feuars of the Property because in all former Taxations they were distinct both from the Temporality and Spirituality and therefore though by the Act of Convention the Temporality of these Shires be eased it will not extend to the Property especially seing the Reason of the Act cannot extend to them for the Feuars of the Property did bear no Taxation till the year 1592. and then there was a Commission granted for Retouring them and that Complaint of the high Retours of the Shires being then known these of the Property would doubtless endeavour to have easie Retours It was answered that the Act of Convention expresly Regulating the Taxation both as to the Spirituality and Temporality it cannot be thought but that these Members did comprehend the whole and seing the Property cannot be of the Spirituality it must be of the Temporality which hath the abatement as to these Shires without exception and albeit the Property was lately Retoured yet there being no Rule to estimate a Merk-land or Pound-lands Retour by or how many Pounds of real Rent makes a Pound of Retour there could be no other Rule but to make the Retour of the Property
him and all danger and that he would be loath to bid him do any thing would do him harm whereupon he did Subscribe as VVitness and saw not the Tutor Subscribe at all nor saw not his Name put to the VVrit at that time and that this was not at the Barns of Towy the time of the Lairds Death as the Date of the Paper bears but at Achready five weeks thereafter Ferguson Deponed that Captain Barclay having been his Tutor he induced him to VVrite over the Bond of 100000. Pounds whereof he had formerly gotten a Draught from Iames Midletoun Notar wherein Debitor Creditor Sums and Date were blank and that he filled up Umquhâ—â—â— Towy Debitor and the Captain Creditor and the Sum 100000. Pound and put in a Date as if it had been before the Lairds Sickness albeit it was truly after his Death and that the Captain shew him Towies Subscription in a Letter and caused him feinzâ—e it to the Bond as near as he could and likewise Depones that the Captains Brother was the other VVitness but that he saw not what the Deponent had done nor knew not thereof He also Deponed that he filled up the Date and insert the VVitnesses in the Disposition of the Estate of Towy at the Captains desire and made the Date to be at the Barns of Towy at the Lairds Death albeit it was done at Achready about a Month or twenty days thereafter and that there was no Subscription put thereto at that time but that the Captain told him that he would get the Tutor to put his Hand to it thereafter and that the Deponent refused to Subscribe VVitness because the Tutors Name was not thereat Upon these Testimonies both these VVitnesses and Steel who was formerly out upon Bail were put in Prison Henderson contra Anderson November 18. 1669. HEwat having made a general Disposition of his whole Goods and Geir to Anderson and thereafter having Disponed to Henderson his Creditor Henderson pursues Anderson for Reduction of his Disposition as being fraudulent in prejudice of Creditors without any equivalent Cause Onerous contrare to the Act of Parliament 1621. against fraudulent Dispositions The Defender aâ—leadged that the Reason was not Relevant upon the said Act because Hewat and Anderson were not conjunct persons and because his Disposition buir an Onerous Cause viz. for Sums due to himself and for 2000. Merks and other Sums for which he was Cautioner for Hewat and gave in a condescendence of the particular Sums and offered not only to Depone thereupon himself but to astruct the same by the Oath of Hewats Creditors to whom he payed The Pursuer answered that albeit ordinarly Dispositions amongst persons not conjunct bearing Causes Onerous were sufficient yet this Disposition being manifestly fraudulent in that it is omnium bonorum which the Receiver thereof could not but know to be in prejudice of the Disponers other Creditors to whom there was nothing left and so is particeps fraudis and likewise the Sum of 2000. Merks which is the only Cause specially exprest being instructed to be false by Discharges of the most part of that Sum by the Creditor to Hewat himself the remainder of the Cause being general ought to be instructed not by Andersons Oath but by sufficient Probation at least the verity of the Debt by Hewats Oath and the payment thereof by the Oaths of Hewats Creditors to whom it was payed and that it wa payed by Anderson before the Disposition at least that he was bound for payment thereof before the Disposition The Defender answered that Dispositions of Moveables are valide without any VVrit especially before any Diligegence done by the Pursuer and if these who acquire Moveables were obliged to instruct the Cause otherwise then by their own Oaths all Commerce would cease and the Defender having taken a Disposition in VVrit can be in no worse case then if he had none The Lords having considered the Defenders condescendence found that what waâ— due to the Defender himself by Hewat before the Disposition should be sufficiently instructed by Anderson's own Oath but as to what was due to him or payed by him for Hâ—wat after the Disposition and before any Right or Diligence of Hendersons that the same should also be allowed being instructed by Howats Oath and these who received the Sums and that accordingly Anderson should accompt for the whole Goods he meddled with and pay the superplus thereof to Henderson the Pursuer over and above the saids Articles The Creditors of Cowper and Balmerino contra My Lady Cowper November 25. 1669. THe Deceast Lord Cowper having made a Disposition of his whole Estate in Fee to his Lady and thereby having excluded the Lord Balmerino his appearand Heir therein Balmerino being unwillingly to Enter Heir to Cowper before he knew whether the Disposition would stand or not moves some of Cowpers Creditors and some of his own Creditors having Charged him to Enter Heir to Cowper to insist in the Reduction of the Disposition made to the Lady as being done by Cowper in lecto agritudinis It was alleadged for the Lady no Process at the Creditors of Cowpers Instance First Because they insist only upon Personal Bonds granted by the Lord Cowper and have no real Right to the Land and so cannot Reduce a real Right but upon a real Right So till they have Apprized the Lands they have no Interest 2dly Albeit Cowpers Creditors might Reduce the Disposition as betwixt conjunct Persons without an onerous Cause yet not upon the Reason ex lecto because that is a priviledge particularly competent to Heirs but not to Creditors as they are Creditors unless by real Diligences they state themselves in place of the Heir and so make use of his Right and Priviledge It was answered for the Pursuers that in that they were Creditors they had sufficient interest to crave it to be declared that the Estate of Cowper should be Affected with Apprizings upon Cowpers Debts due to them notwithstanding this Disposition which is all the Effect of this Reduction and as they may without any real Right Reduce or Declare as aforesaid upon the Act of Parliament 1621. against fraudulent Dispositions so they may declare that any Disposition done on Death-bed as it could not prejudge the Heir so it cannot prejudge the Creditors of the Defunct or his appearand Heir but that they may affect the said Estate with their Legal Diligences It was answered for the Defender that she repeats the former Defense And further alleadges that she is content to take off the interest of Cowpers own Creditors and to Declare that the Disposition shall be burdened with their Debts but adhered to her Defense against Balmerino's Creditors who though they produce an Apprizing yet it is posterior to the Summons and their Personal Debts can be no sufficient Title nor is there any produced It was answered for Cowpers Creditors that the Declarator in their favours was no way sufficient nor would not give
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
would have been before the Bailzies when the Cause was Advocat at which time Cornelius Term of payment was not come The Lords found that the unwarrantable delay by the Advocation should not prejudge Charters and that the case should be considered as it was the time that the Advocation was raised and preferred Charles Charters upon his posterior Arrestment in respect the Term of payment of his Debt was come to the prior Arrestment laid on upon a Debt the Term of payment whereof was not come whereupon Citation was used before the Term came The Advocats having withdrawn from the House upon the Oath prescribed by the Regulation nothing was Called until the midle of December Murray of Achtertire contra Gray December 16. 1670. MVrray of Achtertire having pursued a Contravention against Gray upon several Deeds whereof one was that Achtertire having procured liberty from a Neighbour Heretor to make a Cast upon that Heretors Ground wherein some little Burns were gathered to a Head and thence were conveyed through Achtertires own Ground to his Miln Lade and that Gray had broken down that Cast whereby the Burns were divertedâ— Gray having compeared and proponed nothing the Libel was found Relevant and admitted to Achtertires Probation who by several Witnesses proved that the Defender had broken down that Cast of whom some Deponed simply but two of them Deponed thus that Gray had broken down the new Cast but that the Burns gathered therein in the time of Floods did water Grayâ—s own Lands and that by the new Cast they were keeped in and could not water the same whence it arose to the Lords consideration whether that Deed of Contravention was sufficiently proven or whether the Testimonies of the Witnesses being qualified that the Defender had done the Deed but in continuation of his former Possession of the watering of the Burns whether respect ought to be had to that qualification some thought not because the Fact as it was Libelled was found Relevant and proven and the qualification ought to have been proponed by way of Defense but it was found that the Testimonies being so qualified did not sufficiently prove to infer a Contravention for if the Contravention had been proven by Writ or Oath such a quality either in the Writ or Oath would hinder the same to prove sufficiently the Contravention But because the Testimonies were not to be considered by the Parties the Lords ordained the Sentence to expresse the foresaid Reason of it that the Pursuer before Extract might alleadge any thing thereanent he thought fit Nicol Langtoun contra Robert Scot Decem. 17. 1670. JOhn Graham of Gillesby having Set a Track of his Lands of Graystoneflat to Nicol Langtoun and being at that time at the Horn Robert Scot obtains a Gift of his Escheat and Liferent from Annandale his Superior and thereupon obtains general and special Declarator Decerning Langtoun to pay the Duties to him as Donator Langtoun Suspends and raises Reduction on this Reason that the Gift was simulat to the behove of Graham the Rebel procured by his own Means and Moyen and it being answered by Scot that he being a lawful Creditor of the Rebels might lawfully accept and make use of this Gift for his own security albeit the Rebel had procured the same and Scot the Donator having Deponed anent the simulation of the Gift did acknowledge that the Rebel had procured the Gift and that he had it blank in the Donators Name and that he did fill up Scots Name and delivered it to him The Lords found the Oath to prove the simulation of the Gift and that it having been in the Rebels own hands blank in the Donators Name it was equivalent to an Assignation from the Rebel and that Scot accepting of it so from him could not justly or bona fide make use of it even for security of a just Debt in prejudice of the Tacks-man who had before gotten his Tack from the Rebel Alison Kello contra Kinneir Ianuary 5. 1671. ALison Kello as Heir to her Mother Margaret Nisbet having pursued a Reduction of an Apprizing of the Lands of Paxtoun Led at the Instance of Mr. Samuel Hume against the said Margaret in Anno 1622. and Assigned to Mr. Alexander Kinneir in Anno 1623. upon this Reason that the said Mr. Alexander was satisfied by his Intromission within the Legal this pursuit being against Mr. Alexander Kinneirs Son who is Minor and being stopped upon his Minority quid Minor non tenetur placitare de hereditate paterna The Lords did upon the Pursuers Petition grant Commission to Examine Witnesses upon the Intromssion to remain in retentis till the Cause might be Determined in respect the Witnesses might die in the mean time which being reported the Lords remitted to an Auditor to state the Compt of the Intromission according to the Probation that the stated Accompt might remain in retentis The Defender being heard again before the Lords did alleadge that the Accompt could not be stated upon this Probation but that there being yet no Litiscontestation in the Cause neither can be through the Defenders Minority and this Probation being but before answer to remain in retentis and taken by Commission the Defender not being present at the Examination and the matter being very ancient fifty years agoe the Lords ought to give the Defender the sole or conjunct probation of this alleadgeance viz. That he offered him to prove that during the years of the Legal the Lands were Possest by several Persons by Dispositions or Tacks both under Reversion for certain Sums of Money due by the said Margaret Nisbet which Rights were granted by her and were now produced by the Defender which with the saids Rights produced is much more pregnant nor the Pursuers Probation by some inconsiderable Countrey People without any Adminicle in Writ It was answered for the Pursuer that the alleadgeance was no way Relevant being contrare to her Libel and founded super jure tertij for this Defender hath no interest in the Wodset Rights nor doth any Person appear for them or own them and if this were sustained it would afford a current evasion in all kind of Pursuits upon Intromission by offering still to prove that the Defender did not but that a third Party did Intromet and therefore the Lords have never Sustained such a Defense upon the Defenders sole Probation and in no case have allowed a conjunct probation It was answered that in a matter so old and where the sole probation of a thing of so great Moment was to be by Witnesses the Lords ex officio might Examine Witnesses for either Party and have oft so done especially the same ought to be done here where the probation is by inconsiderable Persons and so suspect and exorbitant proving â—â—nneirs Intromssion to be before he had any Right and the quantities to be much higher then the written Tack of the Lands produced The Lords found that they could not admit a Probation for
Cautioner in the Suspension he can only have recourse against him for whom he was Cautioner but not against his Cautioners in the principal Bond for us to them it is all one as if the principal Debitor had payed 2dly Though the Cautioner in the Suspension could have access against the Cautioners in the principal Bond yet all of them being Cautioners for the same Principal they must bear equal burden and so he must allow his own fifth part in the same manner as Cautioners in a Bond of Corroboration bear equal burden with the Cautioners in the principal Bond. The Lords found that the Cautioner in the Suspension had access against the Cautioners in the principal Bond he alwayes deducing his own fifth part Earl of Northesk contra Viscount of Stormond February 28. 1671. THe Earl of Northesk pursues the Viscount of Stormond on this Ground that he having sent 100. pound Sterling to London to the umquhil Viscount of Stormond to be imployed for Houshold Furniture the most part thereof was not imployed and for instructing his Libel produces several missive Letters of the Viscounts one Holograph another having an Holograph Postscript and a third Written with another hand which did state the Accompt and acknowledged the Debt It was alleadged for the Defender that the only Letter which had any special Probation in it was the last which is not Holograph It was answered that the Subject Matter being a Sum sent for Furniture which uses not to be redacted in Writ the Viscounts Letter Subscribed by him though not Holograph is sufficient to prove for Bills of Exchange so Subscribed or Letters among Mâ—â—chants are sufficient and this Letter being amongst Noble Persons in such a small particular which requires not ordinarly Writ must be of the same force especially seing there is also produced two other missives not controverted which comparatione literarum are clearly the same with this Letter in question The Lords found that this Letter though not Holograph was a sufficient Instruction having compared the same with the other not controverted Subscriptions The Pursuer making Faith that this is the same Letter which he received from the Deceast Viscount his Servant or Messenger Steil contra Hay of Rattray Iune 6. 1671. UMquhil Steil having a Feu of some Aikers of the Barony of Rattray Chancellour Hay as Superiour and Baron of the Barony pursued Reduction and Improbation against Steil and other Vassals and in Iuly 1624. obtained Certification the Chancellours Right being Transmitted to Doctor Patrick Hay he accepts of the Feu-duty and gives a Discharge of the year 1624. and thereafter in Anno 1628. having obtained Decreet of Removing against Steils Relict he by a Transaction with her passes from it and gives her other Lands in lieu thereof but without any mention of the Improbation Steils Heir attains Possession of the saids Aikers of Land and Hay of Rattray as now having Right to the Barony pursues a Removing against Steils Tennent and obtains Decreet of Removing without Calling Steil whereupon Steil pursues Ejection and Intrusion against Hay of Rattray wherein in respect that Rattrays interest was by a Sentence though unwarrantably given without Calling the Tenuents Master The Lords restricted the Letters to Re-possession and ordinar profits wherein it was alleadged for Rattry Absolvitor because the Defenders Author having obtained Certification in the Improbation at Chancellour Hays Instance produces the same which did evacuate the Pursuers Fathers and Predecessours Right The Pursuer Replyed First That the Decreet of Certification produced was not Relevant because it was not a Certification in an Improbation which was not concluded by the Summons as they are exprest in the Decreet which bear That the Writs called for should be cancelled and declared null but bears not that the same should make no Faith or should be declared as False Forged or Feinzied 2dly Doctor Hay the Defenders Author by accepting of the Feu-duty for a Term after the Decreet did pass therefrom and did acknowledge and Homologate the Pursuers Right and did acknowledge the Liferenters Right by Excambion therewith The Defender answered that he opponed his Decreet of Certification the Decernator whereof is expresly in the Terms of an Improbation And likewise the beginning of the Libel being both at the Chancellour and Kings Advocats Instance and at the Compearance the Pursuer insisted for improving the Writs called for so that the Repetition of the Conclusion of the Libel hath been only through Inadvertence not fully set down And as to the Discharge of the Feu-duty First It is Vitiat in the Date 2dly It wants Writer and Witnesses and albeit it were Holograph it cannot instruct the true Date and it can never import a passing from the Improbation further then for the Term Discharged especially seing it was granted by Doctor Hay who was singular Successor to the Chancellour and perhaps knew not of the Improbation The Pursuer answered that the Certification being granted in absence the Obtainer thereof might frame it as he pleased but it cannot be supposed to be truly better then as it stands and though Improbations being in absence are very much adhered to yet they are odious Rights and very Reduceable upon any Defect or Informality seing it is formality that gives them all their strength And as to the Discharge the Date of it hath been altered at the Subscription by the Subscribers hand as appears by comparing the Date and Subscription 2dly In the very Body of the Discharge no ways altered it bears to Discharge the year 1624. after the Certification and the Discharge as it stands is in the ordinar way as Discharges uses to be given to Tennents and Vassals for small Feu-duties and therefore must be sufficient in a case so favourable for the Pursuer who has a clear Right and should not be eleided by this dubious Certification which must be restricted to a Certification in a Reduction which is only Reducing the Rights till they be produced and so falls they being now produced The Lords Repelled the Defense upon the Certification in respect of the Reply and Discharge produced and Decerned the Defender to Re-possesse the Pursuer but Assoylzied him from the bygone Profits seing he Possest by a Title and had just Reason to Defend in a matter so dubious Sir William Stuart of Kirkhil contra Sir George Mckenzie and Kettlestoun Iune 8. 1671. SIr William Stuart as Heir by progress to Sir Lewis Stuart his Goodsire pursues Improbation of a Bond bearing to be granted to Mr. Iohn Stuart of Kettlestoun his Son granting an Annuity of 3000. merks yearly during his life and some other Provisions Which Bond is Assigned by Keitlestoun to Sir George Mckenzie and being produced Kettlestoun has abidden by the same and has declared upon Oath that he was not present when it was Subscribed but that he received it from his Father as now it is one of the Witnesses insert being then Kettlestouns Servant depon'd that the Subscription to
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
Partiality and Corruption of Witnesses and the question being only the manner of Probation by the Law of God and all Nations Witnesses are the general mean of Probation and so ought to take place in all Cases where Law or Custom hath not restricted the same and it cannot be pretended that ever there was one Decision of the Lords finding Reprobators only probable scripto vel juramento And it being acknowledged that Witnesses are competent ante sententiam there is neither Law nor Reason to refuse the same post sententiam especially with us where the Names of the Witnesses are never known till they be produced neither is their Testimonies published or ever known before Sentence So that the other Party can have no interest to quarrel their Testimonies or know them before Sentence and so Reprobators shall never be effectual unless proven by the Oath of the Party that hath Corrupted them which is as good as absolutely to refuse Reprobators for it cannot be imagined that a Party will Corrupt Witnesses and not resolve to deny it upon Oath And as â—o the inconvenience to singular Successors the Oath of the Author may be as hazardous to them as Witnesses and if the acquirer of the Sentence be denuded if in that Case even their Oath be not receivable it is easie to Evacuat all Reprobators And as for the inconvenience of perpetuating Processes that holds whether Witnesses be receivable in Reprobators before Sentence or after and if admitting of Witnesses be so qualified that it be only when the Witnesses in the first Sentence are not above Exception and the Witnesses in the Reprobators above all exception and that it be in a palpable Fact of receiving Bribes and recently only after Sentence and with a liberty to the Obtainer of the Sentence to astruct the same by other Witnesses or Evidences as in Improbations for Reprobator is a kind of Improbation there can be no hazard of multiplying Reprobators but this inconvenience if it were Relevant would not only take away all Reprobators but all Reductions for the Decreet Reductive may be quarrelled by a second Reduction and that by a third and so without end But the inconvenience on the other hand is far greater that all Parties will be sure to Corrupt VVitnesses if they do but resolve not to confess it and VVitnesses will be easie to be Corrupted being secured against all Redargution And whereas it is pretended that Witnesses with us prove not above 100. pounds that is only where VVrit may and uses to be adhibite in paenam negligentium But otherwayes VVitnesses are adhibite in the greatest matters as Improbation of VVrits Probation of Tenors Extortion Circumvention Spuilzies Ejections and Intromissions of whatsomever kind or quantity The Lords found Reprobators upon Corruption and prompting of VVitnesses only probable scripto vel juramento after Sentence this was contrair the opinion of many of the Lords and was stoped till a further hearing at the Bar. Earl of Hume contra The Laird of Rislaw Iuly 18. 1671. THe Kirk of Fogo having been a Kirk of the Abbacy of Kelso when the same was Erected this Kirk was reserved in favours of the Earl of Hume and Disponed to his Predecessors whereupon he pursues the Laird of Rislaw for the Teinds of his Lands as a part of the Teinds of Fogo who alleadged absolvitor because his Predecessors obtained Tack of their Teinds from the Minister of Fogo as Parson thereof which Tack though it be now expyred yet he bruiks per tacitam relocaâ—ionem The Pursuer Replyed that his tacite Relocation was interrupted by Inhibitions produced The Defender answered that the Inhibitions were only at the instance of the Earl of Hume who was never in Possession of his Teinds whose Right he neither knew nor was obliged to know and the Earl ought to have used Declarator against the Defender and the Parson of Fogo his Author which was the only habile way and not the Inhition The Lords Sustained the Processe upon the Inhibition and restricted the Spuilzie to wrongous Intromission unless the Defender could propone upon a Right in the Person of himself or his Author that could either simply exclude the Earls Right or at least give the Defender or his Author the benefite of a possessory Judgement and put the Earl to Reduction or Declarator VVhereupon the Defender alleadged that the Parson of Fogo was presented by the King as Parson of Fogo and did so bruik by the space of thirteen years which was sufficient to Defend him in judicio possessorio It was Replyed First That the Minister cannot pretend the benefit of a possessory Judgement because his Possession was not peaceable in so far as it was within the thirteen years it was interrupted by the Pursuers Inhibitions The Defender answered that he offered to prove thirteen years Possession at least seven years peaceable Possession before any Inhibition which is sufficient for as thirteen years Possession makes a presumptive Title decennalis triennalis possessor non tenetur docere de titulo yet where the Defender produces a Title viz. a Presentation as Parson he is in the common Case of a possessory Judgement upon seven years Possession The Pursuer further Replyed that albeit the seven years were peaceable and sufficient for a possessory Judgement yet the Defender cannot maintain his Possession by tacite Relocation for he having no positive Right in his Person his Tack being Expired he can only maintain his Possession upon his Authors Right as Parson and so can be in no better Case than his Author who if he were compearing not pleading the benefite of a possessory Judgement he would be excluded by this Reply that he had acknowledged the Earls Right and taken Assignation from him to the Tack-duty due by the Defender which though it would not be sufficient after the Defenders Tack to exclude the same if it were not expired yet it is sufficient against his tacite Relocation which can only subsist while his Author hath Right and Possession and being but a presumptive continuation of the Right it is easily taken away by any Deed of the Author It was answered that tacite Relocation being introduced by Law was as strong as a Prorogation and continuation of the Tack which could not be prejudged by any posterior Deed of the Parson The Lords found the Defense upon the Parsons Right cled with seven years peaceable Possession Relevant in judicio possessorio to defend the Defenders tacite Relocation but found the Reply Relevant that the Parson had accepted Assignation from the Pursuer to make the Defender lyable for the ordinary profits after the Assignation and after the first Inhibition but only for the Tack-duty till the first Inhibition and found that the tacite Relocation was not in a like case as if the Defender had a Tack or Prorogation Andrew Harlaw contra Agnes Hume Iuly 18. 1671. ANdrew Harlaw having obtained Decreet against Agnes Hume as Executrix to her Husband She Suspends and
sell r. he did sell p. 493. l 8. peculium r. periculum p. 497. l. 47 yet whether r. yet where the p. 498. l. 30. 29. ad r. 30. act p. 518. l. 42â— so Richard r. to Richard p. 533. l. 28. loadned r. abandoned p. 546 uses to be preferred Adde the Strangers Infeftment p 567. l 30. and jus r. as jus p. 569. l. 22. Heretable r. Moveable p. 570. l. 4. the Husband therein r. the Husbands interest therein p. 590. l. 32. Ardoch r. him p. 593. l. 38. granted to r. granted by p. 610. l 7. no Testament r. a Testament ibid. did exhauâ—t r. did not exhaust p. 627. l. 26 nothing r. any thing p. 659. l. 30. by invalidat r. to invalidate p. 657. l. 36. are not comprehended r are comprehended p. 665. l. 27. exclude r. excluded p. 666. l. 41. and in r. and not p. 679. l. 21 they could be r. they could not be p. 725. l. 2. another r. a Mother last Index p. 2. l. 49. fragrant r. fragrant A LIST Of the Heads of the following Index or Alphabetical Compend ACT of Indemnâ—ty Act of Parliament Act Salvo Jure Adjudger Adjudication Admâ—ral Advocat Adulterâ—e Alibi Aliment Ann Annexation Annuitiâ— Annus deliberandi Annuelrent Appryzing Arbâ—ter Arrestment Assignatâ—oâ— Attester BAillie Baâ—rn Band Barron Base Infeftment Bastardie Behaving as Heir Bills of Exchange Blank Bloodwiâ—e Bona fides Burgh Burgh Royal. CAptâ—on Casus â—ortuitus Cause onerous Cauâ—â—oner Cedent Certification Charge Chyrogâ—aphum c. Circumvention Citation Clause Clause of Conquest Clause Irritant Clâ—â—se of Substitution Clause de non alienando Coal Cognâ—tion Colledge Command Commissar Commssion Commodatum Common Pasturage Commâ—ntâ—e Compensation Competent and ommitted Compt Compt Book Conclusion of the Cause Confession Confirmation Conâ—usion Conjunctâ—ee Conqueâ—â— Conâ—ent Consignatâ—oâ— Continuation Contract Conâ—rary Alleadgances Contravention Creditor Cropt Cruves Curators Custodie DAmnage Date Death Deathbed Debitor noâ— presumitur donarâ— Debitum fundi Declarator Declarator of Escâ—eaâ— Declarator of Non-entrâ—e Declarator of Nullity Declarator of Property Deâ—reet Decreet Arbitral Decreets of â—nferior Courts Deâ—reets of Session Decreets of Parlâ—ament Delivery Depositation Designaâ—ion Devastation Dilâ—gence Discharge Disposition Division Donatâ—on Donatâ—on betwixt Man and Wife Donator Double poynding In Dubiis c EJection Erection Escheat Exâ—cutors Executor Creditor Execution Exception Exhibition Exhibition ad deliberanduâ— Extract FAther Feu Feu-dutâ—e Forfaulture Fraud Fraught Fruâ—ts Gâ—neral Letâ—eâ—â— Gâ—ft HEirs Heir Male Heir substâ—tute Heâ—r apparent Heâ—rs â—n Tacks Heirship moveable Herâ—table Holden as confest Holograph Homologation Horning Husband Hypothecaâ—ion IGnorantia juâ—is c. Improbation Incident Pro â—ndiviso Infeftment Inhibition Interdiction Interruption Intimation Intromâ—ssion Jus Mariti Jus superveniens c. Jus tertii K The Kâ—ngs Palace Knowledge LAw Legacy Licence to pursue Litiscontestation Locus penitentiae Lords Lucrative Successor Life Lyferenter Lyferent Eâ—cheaâ— Lyon Herauld MAgistrats Mandaâ— Mails and Duties Maintinance Marriage Melâ—oration Merchant Metus Causa Miln Minister Minor non tenetur placitare c. Mâ—nor Minorâ—tie and Leâ—â—on Minute Missive Letter Mother Moveable NEarest of Kin Non-entrie Noviter veniens ad notitiam OAth Oath of Calumnâ—e Oath â—x officio Oath in 〈◊〉 Oath qualified Obligation Offer Office Overseer PArt and pertinent Parties having Interest Paricide Passing from c. Payment Pension Perrâ—l Personal Possession Possessor bonae fidâ—â— Possessorie Judgement Poynding Precept Premunition Prescription Presumption Priviledge Probation Process Promise Protutor Prize Ships Pupil RAtâ—habition Recognâ—tion Redemptâ—on Reduction Regalâ—tâ—e Relief Relâ—ct Removâ—ng Renunciation Reparation Repâ—obatâ—re Requâ—sition Retour Reversion Right Real SAlmond-fishing Satâ—sâ—action Seasine Service Servitude Simulation Singular Successor Slander Special Declarator Spuiâ—zie Stipend Stollen goods Submission Substitution Successor Lucrative Summonds Superior Superiority Suspensions TAcit Relocatâ—on Tack Taxation Teinds Tenor Terce Term of payment Testament Thirâ—age Tocher Trads-men Tranâ—action Transferrence Trust Tutor Tutor nominat Tutor dative ULtimus Haeres Use of Payment Userie VIcarage Violent profites Vâ—tâ—ation Vâ—tious Intromâ—ssion WArd Wakâ—â—ng Warnâ—ng Warrandâ—ce Wiâ—e Wâ—tnesses Wâ—tnes ex officio Wâ—tnesses insert Wodsetter Wodset Writ INDEX OR An Alphabetical Compend of the first Part of the Decisions of the Lords of Session beginning in June 1661. and ending in July 1671. ACT OF INDEMNITY found to liberate a Souldier â—cting with a party of Souldiers in Arms under any Authority lawful or pretended and that his Warrand or Command was thence presumed unless it were proven by his Oath that he had no Warrand and converted the Goods to his own private use Iune 25. 1664. Ferquharson contra Gardner The same found February 15. 1666. Lyon of Murâ—ask contra Gordouns and others But here the application was â—ound probable by Witnesses Act of Indemnity â—ound to secure a Person intrometting by order of the Comittee of Estates for the time in so far as he compted to them without necessity to show his Commission or the Warrand of the Auditors that compted with him but not found sufficient to free him from what he had omitted though the said Accompt bear That he had made Faith that he had omitted nothing Which was only accounted an Oath of Credulity like that of Executors February 13. 1667. Lord Iustice Clerk contra Laird of Lambertoun Act of Indemnity â—ound to make Intromettors with publick Money lyable only for their Intromissions and not for omission though by their Commission they were bound to do Diligence February 23. 1667. inter â—osdem Act of Indemnity found not to make Collectors lyable for what they intrometted with and compted not for not being applyed to their own use but carried away by Souldiers for the use of the Army without necessity to instruct the Souldiers or Collectors Warrand which was presumed Iâ—ly 28. 1668. inter â—osdem ACT OF PARLIAMENT Relating a former Act and not conform thereto â—ound not thereby to alter the former Act but to be Regulat thereby Ianuary 20. 1665. The Heretors upon Don Water contra the Town of Abâ—rdene An Act of Parliament anent leaving the mid-stream free in Crâ—ives found to be taken away by Deâ—uetude past memory Iuly 29 1665. Inter eosdem The like of the Act 1555. cap. 29. Iuly 5. 1666. The Earl of Hume contra his Creditors Act of Parliament in favours of private parties not Printed assigning them to some bygone Maintainance found not effectual against singular Successors though not excepted in the Act they not being called thereto Iune 25. 1668. Inglis contra Laird of â—alfour Act of Parliament betwixt Debitor and Creditor found not to extend to Bonds for Rents of Lands though exceeding 1000. pounds but that personal Execution might be thereon December 6. 1661. Dalmahoy contra Hamâ—â—toun of â—innie The said Act found to Restrict a Wodset though the Usurpers Act and all such Acts made or to be made were Resâ—inded Ianuary 29. 1661. Laird of Lamingtoun contra Sir Iohn Châ—isty The Security required by the said Act for Principal and Annualrent accumulat found either to be by
where the conclusion of the Summons as it is related in the certification was not in the Terms of an Improbation and at the Kings Advocats Instance there being likewise a Discharge of a Terms Feu-duty granted by the party having Right to the certification which Term and Discharge were posterior to the certification and did import a passing from it and did Homologaiâ— the Vassals Right Iune 6. 1671. Steil contra Hay of Raâ—ray Certification contra non producta was not Sustained at the instance of an Appryzer against all Writs granted by him and his Authors Named and their Predecessors to whom they may succeed â—ure sanguinis as to the Rights granted by these Predecessors unless it be instructed that the said Authors were Infeft as Heirs to their saids Predecessors and that though Defenders be obliged passive to produce all Rights made to them and their Predecessors to whom they may succeed jure sanguinis and so to produce before they be entered yet active they cannot insist for certification of Rights made by their Predecessors as appearand Heirs to them but as being actually Heirs and Infeft and that an Appryzer was in no better case as to this than if his Authors had been pursuing and so he behoved to instruct that they were Infeft as Heirs to their Predecessors Iuly 14. 1671. Dumbar of Baldoon contra Maxwel Certification was not stopped because there was none called to represent the Defenders Authors upon whom they did condescend unless they first produce their Rights from these Authors thereby to instruct that they are Authors and unless that these Authors be obliged to them in warrandice the warrandice being the only ground of calling the Authors that they might defend their Rights to shun the warrandice Ibidem A CHARGE to enter Heir was not found necessary to a poynding of the Ground against the appearand Heir of the granter of the Annualrent Ianuary 2. 1667. Oliphant contra Hamiltoun CHIROGRAPHVM apud debitorem repertum was found not only to extend to a Bond found by the debitor but to an Assignation made by the Cedent found by him and Witnesse were not admitted to prove delivery and instructing the Cedent to have the Assignation as Agent December 13. 1666. Thomson contra Stevinson CIRCVMVENTION was not Sustained upon a parties making bargain anent the boot of an â— Horse though it was offered to be proven by the Defenders own Oath that according to his own estimation the Pursuer was lesed above the half and that he was Minor in respect of his Bond bearing upon his oath and conscience never to come in the contrary given at that same time in his minority and ratified after his Majority Iune 23. 1669. Fairie contra Inglis Circumvention was found instructed upon several pregnant evidences of fraud and that not only against the circumveener who obtained a Bond blank in the Creditors Name but against a third Party whose Name was filled up in the blank he having acknowledged by his Oath of Calumny that there were not equivalent sums due to him by the circumveener the time that he delivered to him the blank Bond and filled up his Name but that he became Debitor to him thereafter in equivalent sums whereof he could give no evidence even by his own compt Book though he was an exact Merchant and lived in the same place with the granter of the Blank-bond who is commonly known to be a simple person and the obtainer thereof a subdolus person without asking the granter of the Bond if he had any thing to object whereof he should not accept of it February 9. 1670. Scot contra Cheâ—sly and Thomson Circumvention was sustained to Reduce or abaâ—e a Bond made up of the Rate of the Exchange of Money not agreed upon before the Money was advanced by the Merchant but thereafter the Merchant being intrusted and gave up the rate of Exchange much higher than he thenâ— knew it was but not upon the agreement before hand although it had been far above the ordinary Rate Ianuary 19. 1671. Dickson contra Grahame CITATION on a Bill without the Signet was sustained against a person dwelling in Edinburgh though no member or dependent on the Colledge of Iustice February 12. 1663. Earl of Southeâ—k contra Laird of Brooâ—â—hal Citation at the Mercat Cross of the Shire with certification to be holden as confest granted against a Defender absent where the Messengers Executions bear that he Charged the Defender at his dwelling House and that he knew that he was within but was forcibly holden out by his Wife Iuly 1670. Lindsay and Swintoun her Spouse contra Inglis A CLAVSE in a Bond whereby a Sum was payable to the Man and Wife the longest liver of them two and their Heirs which failing the Mans Heirs was found to constitute the Wife a Lifâ—erenter only and that she could not uplift the sum because the Heir was not concurring and was Infeft and behoved to concur December 10. 1661. Kinross contra Laird of Hunthil A Clause in a Tack that if two years duty run together unpayed the Tack should expire and renuncing the same in that case with a Bond bearing much Duty resting and if it were not payed by such a day that the Master of the Ground might enter in Possession of the Land and Cropt brâ—vi maâ—â— was found to exclude ejection and spuilzie by so entering without declarator December 19. 1661. Dewar contra Countes of Murray A Clause in a Missive whereby the Writer says I have sent you such a sum and you shall have as much as long as you live if you carry your self as you do now being questioned as a Postscript unsubscribed written with the Parties own hand at his Subscription was not found null on that ground but it being alleadged to import but a resolution and not a promise and that the Parties behaviour should only depend on the Writers opinion without necessitating him to prove it aliunde The Lords assoilzied Iuly 15. 1662. Wauchop contra Laird of Niddrie A Clause obliging a party and his Heir-male and all others succeeding to him on this Narrative that his Heir male had the benefite of his Estate and the Heirs female excluded were found to burden the Heir-male primo loco and therefore behoved to be discussed first or the Executors could be lyable Iuly 22. 1662. Anderson contra Wauchop A Clause destinating a Sum to be imployed for the Pursuer and his Heirs on Infeftment was found Heretable quo ad creditorem and to exclude the Wife and Bairns but Moveable quo ad dâ—bitorem and payable out of his Moveables Iuly 22. 1662. Nasmith contra Iaffray A Clause that an Heir-male should pay a Sum to an Heir female out of â—enements was found personally to oblige him to pay but only quo ad valorem of the Tenements and therefore time was granted to dispose thereupon for that purpose December 2. 1662. Câ—â—â—k contra Clerk of Pitâ—ncreâ—â—f A Clause bearing such a quantity to be
Tocher suâ—eable to their condition but for the superplus and if the provision was exorbitant not only the Wife but even the Husband is lyable in quantum lucratus est December 23. 1665. Inter eosdem A Husband receiving a sum provided to his Wife for her use Ornaments or Abuilziaments or any other use she pleased excluding the Husband and his jus mariti was found to exclude the Wifes Executors seing the husband sufficiently furnished his Wife and the Granter of the Provision freely made payment to the husband February 12. 1667. Executors of the Lady Piltoun contra Hay of Balhousie A Husbands Escheat falling by being denunced as husband for his inâ—erest upon his Wifes Bond not subscribed by him and only at the Mercat Cross of Edinburgh he residing out of the Countrey was found not to be Liberate by the dissolution of the Marriage February 25. 1668. Lord Almond contra Dalmahoy A Husband was decerned for his Wifes debt as being holden as confest upon refusing to give his oath of Calumny whether he had just reason to deny what his Wife had declared upon Oath the Decreet for that reason was Reduced February 26. 1668. Grahame contra Touris and her Husband A Husband having Married a Taverner who after Proclamation of the Marriage had bought twelve Hogsheads of Wine and the Pursuer having intented Action against her and him as Husband she dyed within four moneths after the Marriage the Husband delivered the Keys of the Sellar to the Magistrates and Inventared the Wines and abstained from intromettâ—ng the Husband was not found lyable for what was vended before the Marriage nor for what remained unfold after his Wifes death but the burdeâ— of probation was put on the Husband to prove what was vended before and what remained after the Wifes death otherwise to pay the whole November 25. 1668. Andrew contra Corse A Husband Ratifying his Wifes Disposition to her Children by the first Marriage though after Proclamation it was â—ound valide and not Revockable as Donatio inter virum uxorem February 15. 1669. Hamiltoun contra Banes HYPOTHECATION of the profites for the Rents was found to prefer a Town setting their Customes as to the duty due by a Subâ—acksman therfore though not to the Town but to the principal Tacksman and though a Creditor of the Tacksmans had arrested the Sub-Tack-duty for the Tacks-mans debtâ— the Town using no diligence till they were called in a double Poynding yet were preferred Ianuary 31. 1665. Anderson c. contra the Town of Edinburgh Hypothecation of the Fruits of the Ground for the Rent of the same year was found valide to the Setter of a Fishing against the Doâ—atar of the Tenents Escheat who had intrometted therewith and was found lyable to restore Iuly 4. 1667. Cumming of Alter contra Lunâ—dâ—an IGNORANTIAâ—IVRIS non excusat etiam in mulieribus as that a Bond moveable in the Wifes Name belonged to the Husband Iune 16. 1664. Murray contra IN AN IMPROBATION a party user of a Writ challenged but not produced by himself was admitted to abide thereby qualificate viz. That he used it as a Writ produced by another which was in his favours and knew nothing of the Forgery thereof Iuly 24. 1661. Laird of Lambertoun contra Earl of Levin and Kennedy Improbation of a Writ by Exception being proponed and an Act extracted the Defender was not admitted to alleadge nullities quia exceptiâ— falsi est omnium ultima Iuly 3. 1661. Peacock contra Baillie In an Improbation testimonies were published to both Parties and the Defender was made closs Prisoner Iuly 26. 1661. Lambertoun contra Kennedy Improbation was found necessary to be continued though it bear an express priviledge without continuation which was thought to pass of course contrary to form February 7. 1662. Laird of Auchinbreck contra Mcleree In an Improbation after Articles indirect for improving and Articles approving and a Dispute in Writ thereon and Witnesses hinc indâ— examined on all before discussing the Relevancy and the Testimonies closed and new Articles hinc inde and a Dispute in Writ thereon the Parties were heard viva vocâ— and then all advised Iuly 11. 1662. Laird of Lambertoun contra Earl of Levin and Kennedy In an Improbation a Writ was improven though two Witnesses in it were alive and examined thereon and deponed it was his Subscription the other deponed it was like his when he was young seing the Writ was null for want of the Designation of the Writer and other presumptions against it and seing none of the Witnesses remembred that they subscribed or that they saw the Party subscribe so thaâ— their Testimonies were held no more but as de credulitate that this was their subscription seing no â—â—n could possibly swear but that this might be â—enâ—ied by some other not remembring of his subscription neither was holograph Writs found sufficient to astruct and many Witnesses Deponing these were the hand Writ of the Parties yet seing they Deponed not that they saw these written by the Party it was but like the other that these were so like his â—and as that they believed it to be the same which therefore would have proven if there had not been contrary presumptions and evidences proven here some of the Lords were unclear that this Improbation could absolutely â—mprove as false but that the Writs never having been in the Creditors hands and long keeped up by the producer suspecta fama and many presumptions contrary proven it might conclude the Writs suspect and not authentick and probative but not to be forged or false which infeâ—s pâ—nam saâ—guinis and ought to be on clearer probation then such presumptions Iuly 14. 1662. Inter eosdem Improbation of Rights of Lands was found not to be sustained upon the Advocates concourse without the Kings special Warrand albeit it was of Kirklands erected wherein the Pursuer stood infeft as Superiour till he were Redeemed by the King by the Act 1637. and 1661 anent Erections Iune 24. 1664. Laird of Prestoun contra Alred Here some of the Lords remembred the like done in the case of Hopes Goodson when he was Advocate Improbation being Sustained by exception against an assigney it was found sufficient that the Assigney abode by the Writ delivered to him as a true Writ and that he knew nothing to the contrary and producing his Cedent to bide by it who though alleadged to be Bankrupt yet was not obliged to find caution nor go to Prison but only to enact himself to appear judicially whensoever any thing that might infer the falshood of the Writ was referred to his Oath and his being holden as confest should be effectual to prove both against Cedent and Assigney Ianuary 3. 1666. Grahame and Iack contra Bryen Improbation being sustained by exception and Terms assigned to the Defender to improve and to the Pursuer to abide by the Write after the Term was come the Defender was admitted to propone payment by Bill the Act not
1662. Children and Creditors of Bryson OATH IN LITE â— was admitted for proving of Ware in a Pack given in custody where the keeper opened the same though he made Inventary before Witnesses by a Baillies Warrant Ianuary 3. 1667. Packman contra Bran. OATH QVALIFIED was not sustained importing a compensation yet the â—ame was admitted to be proven as an Exception at advising of the cause December 9. 1664. Lermont contra Râ—ssel AN OBLIGATION by three persons to cause a Minor releave a sum not bearing conjunctly and severally was found not to oblige every one in solidum as being for an indivisible Fact but resulting in a divisible sum Iuly 16. 1669. Dennistoun contra Semple of Fulwood OFFER of the remander of a Sum not being special and not being Consigned was found not to purge a Failzie December 19. 1661. Deuar contra Countess of Murray Offer conditional to pay a suâ— for a Mother on condition it were at such a time and place and were made known whether or not it were accepted was found not obligatory after the Mothers death unless the condition had been fulfilled then 〈◊〉 Iune 24. 1664. Allan contra Colner Offer of Caution to a Wodsetter that he ought to quite possession or restrict to the Annualrent was sustained though made at the parties dwelling House when he was out of the Countrey seing the Act of Parliament did not require that offer to be by Instrument and though the instrument of offer did not bear a Procuratory to him that made the offer the said procuratory being now produced Iune 16. 1671. Lord Loviâ— contra Lord Mcdonald THE OFFICE of a Commissar Clerk was found noâ— to be annulled by his absence for a time out of the Countrey and being denunced sine crimine February 6. 1666 Archbishop of Glasgow contra Logan An Office of a common Servant viz. a Town Clerk being given ad vitam was found to imply a tacite condition to be also ad culpam and that such a fault did resolve the same as was of knowledge and consequence February 14. 1665. Town of Edinburgh contra Thomson OVERSEâ—RS were found lyable for nothing if they intrometted not Ianuary 10. 1665. Swintoun contra Norman PART AND PERTINENT of Lands disponed by a Minute was found to extend to a common Paâ—â—urage in a Muire possessed as pertinent of the Land in the Bargain and that the Writes upon the extension of the Minute ought to bear the â—ame expresly February 14 1668. Borthwick contra Lord Borthwick Part and pertinent cum pascuis pasturn in a Charter given by the King to the Feuars of his Property was found to carry common pasturage in the Muire of the Barony which being now possessed 40. years by the Feuars of the Barony is presumed to have been so at the time of the Charter being past memory and that interruptions of any other Right exclusive of this common pasturage was sufficient to preserve the same February 15 166â— Laird of Haining contra Towâ— of Selkirk â—art and pertinent was not excluded albeit an alleadgeance was proponed on an old Seâ—sine of the Lands in question as being separatum tenementum the Seasine being â—ound null and no Title for Prescription February 15. 1671. Earl of Argile contra Laird of Mcnauchtoun ALL PARTIES HAVING INTEREST not necessary to be cited at the Mâ—râ—at Cross in the Declarator of the Expyring of a Feu ob non solutum 〈◊〉 though the Summons bear warrand for the citation December 1. 1664. Eaâ—l of Sâ—therland contra Gordoun PARIOIDE doth not infer Treason as against the Act of Parliament against murder under Trust which is meaned by paction in reâ—pect of the special Act of Parliament against Paricide which doth not exclude the Paricides Collaterals but him and his descendents from the succession of the slain which therefore cannot belong to the Fisk Ianuary 22. 1663. Zeaman contra Oliphant PASSING FROM A REASON of Suspension pro loco tempore was found not to hinder the proponing of the same against that Decreet and against an Appryzing thereon the matter being yet illiquid and a singular Successor in the Appryzing Iune 17. 1664. Laird of Tulliâ—llan contra 〈◊〉 and Braâ—foord Passing from a Reason of Compensation and taking up a Writ for instructing thereof was admitted before Extracting of a Decreet though the Writ was long in the Chargers hand not being judicially given up to him and that another emergent exception might now be admitted Iuly 14. 1664. Lord Balmerino contra the Creditors of Dick. PAYMENT made before the hand was found Relevant against a singular Successor the Kings Donaâ—ar of Forefaâ—lture because it was but of one Term and so accustomed by the Baroâ—y to pay at the Entry and be free at the â—sh Ianuary 7. 1662. Earl of Laudâ—â—dail contra Tennents of Swintoun Payment made bâ—na fide to Baiâ—ns of a Sum by a Disponer in â—avours of these Bairns was sustained though after Reduction raised unless a Reason had been Libelled against that which was ordained to be payed to Bairns and shown before payment Iuly 14. 1662. Mâ—ntgomerie of Mackâ—ichill contra Wallace Payment made bona fide to a Procurator was thought to be Relevant though the Procuratory should be improven if therein there did appear no ground suspition to have put the Debitor in maâ—â— fide February 1. 166â— Elphingstoun of Selms contra Lord Rollo and Laird of Niddrie Payment made by Heretors to Ministers of their Stipends during the time they Preached and before any Process against them was found to liberate the Heretors notwithstanding they were outed by the Act of Parliament anent these Ministeâ—s who entered since the year 1649 and had not gotten Presentation and Collation whereunto the Heretors â—eâ—e not obliged tâ— inquire seing the Ministers were suffered to Preach without challenge February 10. 1666. Collector of the vacant Stipends contra the Heretors of Mayâ—ole and Giâ—van Payment made bâ—na fide was found not to extend to payment made by a Tennent before the time nor to a Sub-Tenent to the Tennent before the Term February 5. 1667. Lady Traquair contra Howaâ—son Payment made of a Decreet by giving Bond of borrowed money and taking Discharges of the Decreet was found no Homologaâ—ion or Transaction but that after the party might quarrel both Decreet and Bond in consequence unless abatement were gotten upon Transaction of the Sum in the Decreet seing it was not voluntarly done but upon Caption Iâ—ly 3. 1668. Rew contra Houstoun Payment of the Rent of a Shop was sustained being a Taâ—k set by a Father to a Tennent for the annualrent of a sum though the Father had given a Right to his Son reserving his own Liferent seing he set the Tack as Feear and though the Son after his death warned only by Chalking the Door without any other intimation the Tacks-man was Liberate of the Rent for his Annualrent as bonae fidei possessor by his Tack till he was cited on the Sons Right February 16. 1669.
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 Bond two affirmed and two denyed their subscriptions the Creditorâ— oath being taken ex officio affirmed the truth of the debitors subscription who being a person of good fame and credit and no improbation insisted in the Bond was sustained Novomber 16. 1667. Laird Cultâ—raâ— contra Chapman A writ having lyen 33. years dormiâ—nt witnesses and arbiters were examined â—x officio whether or not the writ was put blank in the arbiters hands and being found by the party filled up with five times so much as was their mind though there was no adminicle in writ to evidence the cause thereof upon consideration of the long latency of it and the necessity of money the party was in who had it Ianuary 6. 1668. Chisâ—hâ—lme contra Rennies A writ subscribed by a principal party and certain cautioners bearing the day place and witnesses of their subscription and afâ—er the witnesses names bearing as subscribed by another party as Cautioner at blank without any thing following either of the date or witnesses The Bond was not sustained against that Cautâ—oner upon the Creditors condescending on the date and witnesses to be the same with these of the principal and the other Cautioners but the Lords ex officio ordained the witnesses to be examined whether they saw the Cautioner in question subscribe with the principal and other Cautioners reserving to their own consideration what the Testimonies â—hould operat Ianuary 24. 1668. Magistrates of contra Earl of Findlator A Writ wanting witnesses being pursued on against the subscribers Heir and being offered to be proven holograph he was admitted to alleadge that though holograph it could not prove it self to be of the daâ—â— it bear but was presumed to be subscribed in lâ—cto which was sustained being thus proposed without a Reduction seing the Bond was not sufficient of it self but needed probation and the alleadgeance of death-bed was instantly verified by the presumption of Law that the writ instructed not it self to be before the Defuncts sickness November 14. 1668. Calderwood contra Iohnstoun A writ requiring two Nottars subscribed but by one was found to be valide if the verity of the subscription were proven by the subscribers oath and that it might not be resâ—led from but that the oath might not be taken in prejudice of an Assignay for an onerous cause December 18. 1668. Swintoun contra Brown Writ cannat be taken away by witnesses was â—ound not to infer that witnesses cannot be admitted to prove a Bargain anteriour to the writ upon which bargain the writ may be reduced as posterior in prejudice of Creditors seing the payment or discharge of the writ is not proven by the Witnesses Ianuary 21. 1669. Creditors of Polloâ—k contra Pollock A writ being a Bill of Exchange subscribed only by a mark and not initial Letters was found to prove there being some witnesses who deponed they saw the mark put to and others that the party being a Merchant Drover was accustomed so to subscribe Bills of considerable sums which were ordinarly accepted and answered by him but this being the first writ sustained by a mark was only approven by all the circumstances and not to be drawen in example many of the Lords being contrary to the allowing this or any such February 1. 1669. Brown contra Iohnstoun of Clacharie A writ being a Tacâ—â— was found null as not being subscribed by two Nottars though it was subscribed by one and a judicial act of Ratification thereof in a Baron Couâ—t which was not found to supply the want of the other Nottar seing the first Nottar was Clerk of the samâ— Court and all was but one assertion December 18. 1668. Swintoun contra Brown FINIS
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
his mark it being reasoned amongst the Lords whether this could be accompted a Writ Probative and it being alleadged an Astruction thereof that this Johnstoun being a Merchant and a Drover was accustomed ordinarly so to Subscribe and to give Bills for far greater Sums then this The Lords thought it would be sufficient amongst Merchants though it wanted Witnesses but being unwilling via ordinaria to allow of such a Writ or Subscription for which we have neither Custom nor Decision Yet in respect of the Decreet and of the alleadged Custom so to Subscribe They before answer ordained the Oaths ex officio to be taken of the Writer of the Bill if he could be condescended on by either Party and of the Witnesses who saw Johnstoun Write this mark or receive the Money for which the Bill was granted Creditors of Kinglassie Competings Eodem die IN a Competition betwixt the Creditors of Hamiltoun of Kinglassie It was alleadged for William Hume who had Right to an Annualrent that he ought to be preferred to Joseph Lermont who stood publickly Infeft in the Property in Anno 1655. because albeit the Annualrent of it self was base yet long before it was validat by a Decreet for Poynding of the Ground It was answered that there was no way to make a base Infeftment valide but by Possession here there could be no Possession because the Annualrent was granted to take effect only after the Granters Death and the Decreet thereupon was obtained long before his Death and so could be repute no Possession The Lords were of Opinion that the foresaid Decreet of Poynding of the Ground upon the base Infeftment Ordaining the Ground to be Poynded the Terms of payment being come and bygone was sufficient to validate the base Infeftment and that thereby it remained no more a private Clandestine Infeftment by many other Questions falling in The Matter was laid aside without Decision vide February 27. 1667. Inter eosdem John Kinard contra Laird of Fenzies Eodem die JOhn Kinard pursues a Declarator of Property of a Myre or Marish in the Carss of Gowrie against the Laird of Fenzies who had his Land on the other side thereof alleadging that he and his Predecessors and Authors have been fourty years in Possession of the Myre as proper Part and Pertinent of the Barony of Rossie and that the same is severally kend and known by March and Meith and a Dyke inclosing it from the Defenders Lands It was alleadged for the Defender that he his Predecessors and Authors this fourty years has been in Possession of the said Myre by doing all the Deeds Libelled by the Pursuer which must give them Right at least of common Passurage Fail and Divot therein and therefore craves the Defense to be found Relevant and admitted to his Probation at least that a Cognition might be by an Inquest conform to the Act of Parliament and Witnesses led hinc inde The Pursuer Replyed that he offers him to prove that by the space of fourty years he his Predecessors and Authors Possessed the said Myre not only by the Deeds Libelled but also did divide the same in several Parcels to each Tennent in the Barony and was accordingly Possessed by them which is sufficient to show that they bruiked the same as Property and not a promiscuous Commonty And as for the Defenders Alleadgances of Commonty by common Pasturage c. The same ought to be Repelled because the Pursuer offers him to prove that he interrupted and debarred the Defender from time to time which hindered him to Acquire a Right of Commonty by Possession and Prescription and he cannot alleadge that he hath any other Right by express Infeftment and therefore being so much more pregnant then the Defender there ought to be no Cognition but he preferred in Probation The Lords Repelled the Defense in respect of the Libel and Reply but granted Commission to one of their number to Examine Witnesses for the Pursuer omni exceptione majores after which the Defender passing from his Compearance The Lords Declared they would give the Extract of the Interlocutor to the Pursuer and give his Libel and Reply by way of Condescendence and Declaration of the manner of the Property and of his Possession to his Probation Viscount of Stormount contra Heirs of Line and Creditors of the Earl of Annandale Eodem die THE Viscount of Stormont pursues a Declarator against the Heirs of Line of Umquhil James Earl of Annandale and several Creditors of the said Umquhil Earl who had Appryzed the Lordship of Skoon and were Infeft thereupon to hear and see it found and declared that David Viscount of Stormount had Disponed these Lands to Mungo Viscount of Stormount his Brother and the Heirs-male of his Body which failzing to Andrew Lord Balvaird and the Heirs-male of his Body c. with this express provision in the Charter and repeated verbatum in the Seasine that it should not be leisom to the said Mungo or any of the Heirs of Tailzie for the time to alienate the Lands or alter the Tailzie or to do any Deed whereby the same may be evicted or Apprized from the Heirs of Tailzie otherwise their Right should expire and should belong to the next Heir of the Contraveener and that thereby Iames Earl of Annandale last Infeft had contraveened the said Clauses by contracting thir Debts whereupon the Lands were Apprised and thereby had lost his Right and that the saids Creditors Bonds and their Apprizings are thereby null and void and likewise that the said Iames Earl of Annandale his Retour was null and that the Pursuer might yet Enter as Heir to Mungo Viscount of Stormont as if the said Iames Earl of Annandale had never been Infeft The Defender alleadged First No Proses in this Order without a Reduction without which no Infeftment can be taken away The Lords Repelled this Alleadgence and found that a Declarator was al 's effectual as a Reduction when all was produced that was necessar to be produced before the ground of Nullity were Discussed with which all the rest will fall in consequence and that Reduction was only necessar to force tho Defenders to produce by the Certification but if the Defender would produce himself he might proceed by way of Declarator of Nullity Secondly The Defender alleadged no Processes because by the Co-ception of the Clauses irritant the Rights is declared to belong to the nearest Heir of the Contraveener and therefore the Pursuer as served Heir-male general to Andrew Lord Balvaird hath no Interest till he be served Heir-male to Iames Earl of Annandale the Contraveener in which case he cannot quarrel his Deeds or Debts The Pursuer answered that by Heir here cannot be understood the Heir actually served but the Person only that might be Heir for the Pursuer insisted in this same Processes against the Earl of Annandale when he was living and could not have been then excluded because he was not his heir
after the Term of payment that it was Heretable and fell not to the Husband jure mariti but only the Annualrents thereof till his death albeit there was no Contract of Marriage nor a Tocher and that the Husband had after the marriage given some provision to the Wife Mr. George Norvel contra Margaret Hunter Iune 29. 1665. MR. George Norvel having Apprized certain Lands pursued for Mails and Duties against Margaret Hunter Possessor she compeared and proponed a Defense that she stood Infeft in the Lands by a Right from her Husband before the Appryzing but for proving thereof she only produced her Seasine Which the Lords found not to prove without a Warrant and therefore Decerned She Suspends and now produces her Contract of Marriage as the Warrant of the Seasine and offers to make Faith that she had found it out since the Decreet And farder alleadged that through neglect of the Advocats or Clerks her Defense was not proponed no ways acknowledging the quantities libelled which she offers to prove to be exorbitant It was answered first that praetextu instrumentorum de novo repertorum sententiae non sunt retractandae 2ly The Contract produced is not the Warrant of the Seasine but a Bond granted for Implement of the Contract and relating to the Seasine The Lords Reponed the Suspender as to the circumduction of the Term she making Faith c. and found the Contract of Marriage a sufficient Adminicle to astruct the Seasine seing it related to a Bond for the same Cause but refused to Repone her as to the quantities Heretors of the Miln of Keithick contra Feuers Eodem die THe Heritors of the Miln of Keithick pursues certain Feuers for abstract Multures who alleadged absolvitor because they are Infeft ab eodem authore without astriction before the Pursuer It was replyed the Pursuer is Infeft in this Miln which is the Miln of the Barony and per expressum in the Multures of the Lands in question and offers to prove that there is a distinct in-sucken Multure and out-sucken Multure and that the Pursuer has been in Possession of the In-sucken Multure these 40. years bygone out of thir Lands Duplyed the Defender offers him to prove that the Possession has been Interrupted by his going to other Milns frequently and without any challenge or Sentence against them And seing the coming to a Miln is but voluntatis unless they enacted themselves so to do And that the Pursuers Infeftment though expresse was latent and unknown to the Defender all that is alleadged cannot infer an astriction The Lords Repelled the Duply and thought that going to other Milns sometimes as is ordinar in all Thirlage was no sufficient Interruption if they came ordinarly to this Miln and payed in-sucken Multure and therefore found the Reply relevant Richard Thorntoun contra William Miln Eodem die THorntoun as Assigney by Patrick Seaton having obtained Decreet before the Baillies of Edinburgh against William Miln he Suspends and alleadges Compensation upon a Compt due by the Cedent and a Ticket subjoyned by him acknowledging the Compt to be due subscribed before Witnesses which must prove against this Assigney It was answered that the Ticket wanted a date and so could not instruct it self to be anterior to the Assignation It was replyed that it was offered to be proven by the Witnesses insert that it was truly subscribed before the Assignation Which the Lords sustained Stevenson contra Crawfoord Iune 30. 1665. STevinson being surrogat Executor dative ad omissa and having licence to pursue insists against Crawford for a Debt of the Defuncts alleadged omitted forth of the principal Testament The Defense was no Process until the Executor Dative ad omissa be Confirmed but he cannot insist upon a Licence to pursue because the principal Executor having made Faith that the Inventar given up by him is a full Inventar any that crave to be Dative ad omissa are never admitted but upon certain knowledge and so must Confirm and gets no Licence The Lords Repelled the Defense especially seing the Pursuer was a Creditor Younger contra Iohnstoun Eodem die AN Porteous Merchant in Edinburgh having died Infeft in several Tenements in Edinburgh above 50. years agoe his Relict possessing them as Liferenter to this time Shortly after his Death one Patrick Porteous was Served nearest and lawful Heir to him and thereupon Infeft so that his Right came by progress to Iohnstoun 40. years after Younger takes a Right from one Stephen Porteous residenter in Polland and gets him Served nearest Heir to the Defunct and thereupon raises Reduction of the first Retour and all the Infeftments following thereupon Defense absolvitor because the Defenders Author being Served Heir 40. years before the Pursuers Authors Service It is prescribed and likeways being Infeft 40. years since all quarrel against the Infeftment is prescribed For the first Point they condescend upon the second Act of Parliament anent Prescription of the Reduction of Retours which bears that if they be not pursued within 20. year they shall never be quarrellable thereafter The Lords having considered this case at length most part thought that the Retour could not prescrive by the first Act of Parliament because it excepted Minors and absents out of the Countrey which they found not to be meaned of Absents Reipublicae causa but of any absence nor that it fell not directly within the second Act which bears expresly Retours to have been reduced thereafter should be only reduceable within twenty year Others thought the Act might not be extended but bearing expresly to the future it could not be drawn back and the Act of Prescription 1617. meets not this case for if under the prescription of Actions not pursued within fourty year Serving of Persons to their Predecessors Heirs were comprehended it would impede any Person to Serve themselves Heir to any Defunct after fourty year which is yet ordinar and as to the Infefment they fand that it fell not in the Case of the Act of Parliament 1617. because it was not cled with Possession in respect of the Liferenters life whose possession behoved to be the possession of the true Heir of her Husband But the Lords did not decide it seing the Case was rarely occuring and Johnstouns Infeftment very old unquarrelled and recomended the parties to agree Mr. James Nasmith contra Alexander Bower Iuly 1. 1665. THis being a concluded Cause a Question arose upon the Probation an accompt being produced between two Merchants referred to Bowers Oath that it was his hand writ and yet resting he deponed it was his hand writ but not resting The question arose whether he behoved to condescend and instruct how it was payed because though the accompt written with his hand unsubscribed was of it self sufficient Probation the quality was not competent but he behoved to prove payment it being alleadged that Merchants hand writ is sufficient and that a Note upon the back of a Bond or foot of
being Extracted on the improbation though it be omnium exceptionum ultima Ianuary 23. 1666. contra Earl of Kinghorn In Improbations the Lords declared they would grant three Terms for production of Rights of Lands and appointed the Ordinary to intimate the same November 26. 1667. Hay of Haystoun contra Drummond and Hepburn Improbation upon certification was found null because the Defender was then Prisoner of War in Ireland and his Right was after acknowledged by an agreeement though not perfected Iuly 25. 16â—8 Campbeâ— câ—ntra Laird of Glenâ—rchy In an Improbation the Witnesses insert were examined ex officio what they knew of the Truth or Forgery of the Writs in question though the Writs were not produced there being pregnant presumptions and fragrant fame of Forgery Iuly 6. 1669. Barclay contra Barclay In an Improbation after certification was Extracted The Lords Examined Witnesses as to the Forgery in so far as it might be known without production of the Writs in question and though thâ— Witnesses were accessory to the Forgery November 9. 1669. Inter eosdem In an Improbation where the Writs were once judicially produced in Exchequer and wilfully keeped up certification being Extracted The Lords upon Copies Examined the Witnesses insert and Writer who confessed the Forgery and were moved thereto by the Defender whereupon the Writs were not improven as not being produced but the Writers and Witnesses were found Forgers and the Defender as user and accessory and all were declared infamous and remitted to the Council to use an extraordinary Remedy by Banishment against the Defender Ianuary 26. 1670 Inter eosdem In an Improbation where one of the Witnesses insert had a Designation alleadged competent to more persons all that were alleadged to be so designed that were alive were ordained to be Summoned and the hand writs of those that were dead to be produced Iune 8. 1671. Steuart contra Mckenzie and Kettlestoun In an Improbation of the Minute of a Tack wherein one Deponed that he had subscribed at the Defenders Instigation who told him that he caused the Pursuers Name to be set to the Writ and another that he did not see the Pursuer subscribe and the third who was Writer of the Minute and also Brother to the Defender Deponed that he saw the Pursuer subscribe with her own hand The Writ was found improven and false but there was not two Witnesses instructing who was the Forgeâ— Iuly 22. 1671. Miller contra Bothwel of Glâ—â—corse INCIDENT was not Sustained upon an Act before answer ordaining all Writs to be produced the parties would make use of which was found only to extend to such Writs as they then had Iuly 3. 1662. Kello contra Paâ—toun In an Incident four Terms were allowed for proving the having of the Writs by Witnesses but the Terms were to be short December 15. 1665. Moâ—teith contra Anderson An Incident was Rejected because the Pursuer of the principal Cause was not called thereby and the Executions suspect December 23. 1665. Laird of Câ—â—neck contra Lord Bargeniâ— Incident was not Sustained at the instance of any but these whose Names as Purshers were filled up in the Bill though it contained a blank but it was Sustained against the Defenders havers of the Writs for whom a blank was left though nor at first filled up in respect of the custom for the last and not for the first Iuly 3. 1667. Creditors of Waâ—chtoun contra Counteâ—s of Hume PRO INDIVISO was not sustained to hinder Removing of a Relick from an House as being a Tenement Indivisible though she had a Terce of it but the Heretor was found to have Right to possess yet so that if he dwelt not so himself she should be preferred to all others she giving like Mail as others would pay Ianuary 26. 1665. Logan contra Galbraith INFEFTMENT of Annualrent holden base was found valide against a posterior Publick Infeftment because thereon there was a Decreet of poinding the Ground though it could take no effect for a long time seing the Entry to the Annualrent was not till after the Constituents death February 26 and 27. 1662. Creditors of Kinglassie competing Infeftment past in Exchequer on an appryzing against one who was Infeft by his Authour not Confirmed was found not to supply or comprehend a Confirmation in prejudice of another Creditor who regularly had obtained Confirmation of that null Seasine in so far as might concern his base Right depending thereon Ianuary 16. 1663. Tennents of Kilchattan contra Laird of Kilchattan Major Campbel and Baillie Hamiltoun Infeftments graâ—uitous to a Wife after she was provided by her Contract of Marriage was found not to be taken away at the instance of Creditors upon the Act 1621. by Exception or Reply Iuly 22. 1664. Lord Loure contra Lady Craig An Infeftment to a Wife in Liferent was Sustained by her Seasine adminiculat by her Contract albeit the Seasine was not immediatly upon the Contract but related a Bond granted for the same Cause which was not produced Ianuary 29. 1665. Norvil contra Sunter Infeftment of warrandice Lands being in the same Investiture with the principal Lands and both holden base was preferred to a posterior publick Infeftment of thâ— same Warrandice Lands though cled with long possession and that upon an Action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. An Infeftment of Kirklands was Sustained though it bear to be upon Resignation and had not the râ—ddendoâ—per expressum but relative to the former Infeftment without necessity to produce any original Right seing the Charter was subscribed by the Abbot with consent of the Convent Ianuary 17. 1666. Lord Rentoun contra Feuars of Coldinghame An Infeftment to a person on her own Resignation bearing expresly her to be Heir to her Father who was last Infeft The Charter was found equivalent to a precept of clare constat Ianuâ—ry 20. 1666. Inter eosdem Infeftment of the Office Forrestrie with a Duty out of the whole Lands of an Abbacy was found valide being granted by the Abbot and Convent without Confirmation by the King or Pope Ibidem Infeftment in warrandice granted by a Husband to his Wife though base holden of himself and ex intervallo after the principal Infeftment was found valide against a posterior publick Infeftment of the same warrandice Lands as being cled with the Husbands Possession in the principal Lands and that there needed no Declarator of Distress or Eviction but a pursuit of Removing or Mails and duties upon the Eviction is sufficient which cannot be excluded by a possessory Iudgement upon seven years Possession by the publick Infeftment unless it were seven years after the Eviction February 20. 1668. Forbes contra Innes An Infeftment of Annualrent being before a Liferenters Infeftment after which there followed a corroborative Security accumulating the bygone Annualrents and giving Infeftment for both which posterior Security was not Sustained against the Liferenter nor was it held