been called ab initio in that Process yet being called incidenter for proving of an Alledgance by the certification foresaid he became Partie therein And as when an incident Diligence is raised against a haver of Writes for proving of an Alledgance and the having thereof is referred to the Oath of the Defender in the incident if he be holden as confest tho the Alledgance be not proven the Pursuer of the Incident will have Execution against him as Haver and for the Damnage and Interest sustained through his Contumacy so it ought to be in this case The Lords Tho the Earl of Loudoun's presumptive Confession being holden as confest as said is be a convinceing evidence that the said Money was payed to him yet they had that respect to him both as to his quality and integrity that they would have Reponed him if he had compeared himself or had written to the Lords that he desired to be Reponed and did intimate alse much to his Procurators and to that effect did give some time but no Return being made they proceeded and sustained the pursuite at the instance of the Town of Edinburgh upon the medium foresaid Monro Clerk D. 218. Letter by the Lords of Session to the King 12. January 1675. MY Lord Lauderdale His Majesties Secretary having writen to the President concerning the abovementioned Process betwixt Captain Gordon and the Suedes anent the Ship called the Wine Grape That the Suedish Envoy had made Application to his Majesty and had represented That the Decreet against the Strangers was caryed but by two Votes and had given in a List to his Majesty of those that were for and against the said Decreet with diverse Reasons against the same It was thought fit that a Letter should be drawen to His Majesty containing the Grounds whereupon the said Decreet proceeded which being done by those who were appointed by the Lords some of the Lords did object against the same That they did mention the Lords indefinitly to have given the said Decreet Whereas His Majesty was informed of the contrary and the Information was true and therefore it was desired it should bear That upon the Votes of the major part which is usual in all Cases the Decreet was pronounced Specially seing the said Letter did containe the Grounds of and did assert the Justice of the said Decreet So that these who had voted against the same could not belye themselves and put under their hand the contrarie of what they had voted And albeit in all Judicatories even in Parliament what is done by the plurality doth overrule and conclude the Dissenters so as to submitt to the same Yet they are not obliged to maintain or assert the Justice of a Sentence and Act that they had been against in their Judgment and vote It was notwithstanding carryed by plurality That without the amendement foresaid the Letter should be subscribed by all the Lords the President having promised to write to my Lord Lauderdale what was truly res gesta when the said Decreet was given And upon that assureance some of the Lords declared when they subscribed that they subscribed not their oun sense but the sense of the Court And though they were concluded as said is yet they were not convinced D. 219. Glendyning contra the Earl of Nithsdale 13. January 1675. WIlliam Glendining having pursued the now Earl of Nithsdale as Heir to Robert the late Earl of Nithsdale his Father for fulfilling a Minute betwixt the said Robert Earl of Nithsdale and William Glendinning of Lagan from whom the Pursuer had Right and for payment of the half of the duty of the Lands of Douphingstoun conform to the said Minut and Litiscontestation was made in the cause and for proving the rent of the saids Lands of Douphinstoun It was craved that the Depositions of witnesses that had been adduced in the like process intented against the said Earl as representing his Father for implement of the said Minute should be received in this Process But the Lords having considered that the said Earl did not represent his Father active but was pursued only upon the passive Titles and that this process against the now Earl is not against him as representing the last Earl neither was it alledged that he represents him Therfor they Found that the said Depositions could not be repeated in this process Seing res was inter alios acta and acta in uno judicio non probant in alio nisi inter easdem personas or these who represent him D. 220. Edmiston contra Mr. John Preston eod die WAuchope of Edmiston and his Lady as Executors to the deceast James Raith of Edmiston pursued Mr. John Preston lately of Haltrie Advocate for payment of the Tack duty for a Seam of Coal belonging to Edmiston and set to him for certain Years It was alledged for the Defender That he ought not to be lyable for the Years in question because having entered to the Possession of the said Coal and having payed the Duty for the time he possessed he was forced to cease from working in respect the said Coal came to be in that condition that it could not be wrought partly by reason of the defect of Roof so that the CoalÈiers neither would nor could work without hazard and partly by reason of bad Air It was Replyed That the Defender having accepted a Tack of a Subject lyable to such hazards eo ipso he had taken his hazard and was in the case as if he had acquired a Right to jactus retis It was Duplyed That alea and jactus retis and spes in venditione may be and is understood to be sold but in Locatione spes and alea is not thought to be set unless it appear by the Contract that the Conductor should take the hazard seing it is de natura of Contracts of Location that fruitio is understood to be given and set and that merces should be payed ex fructibus And where the Conductor cannot frui upon occasion of an insuperable impediment which does not arise either from his dole or culpa or negligence as in this case remittitur merces as is clear not only when the thing that is set is a subject not lyable to so much hazard but when it is contingent as when Gabells or Custums are set or Fishings or Milns or Coals if there fall out such an impediment as doth interrupt the fruition and perceptionem fructuum as if there be Pest and War in the case of Custums or if Herring should not be got at all or if upon occasion of inundation Milns should be unprofitable or Coal-heughs should be drowned or burnt The Lords before Answer Thought fit that there should be conjunct Probation allowed to both Parties anent the condition of the Coal and the Defenders desisting and ceasing from working thereof and the Occasion of his desisting and if the impediment was insuperable Craigy Reporter D. 221. eod die APPlication being made to the Lords
pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
Son cannot be said to have Right or to Succeed effectualy before that time and so ought likewise to be lyable to the Debts contracted at any time before his Fathers decease D. 131. Balmedie contra the Baillies of Abernethie 15. Jan. 1668. A Decreet at the Procurator Fiscal's Instance of the Regality of Abernethie before the Baillie of the Regality against the Weavers in the Town of Abernethie for contraveening the Act of Parliament 1661 Anent the breadth and bleetching of Linnen Cloath was suspended upon that reason that the Bailies within the Town of Abernethie were only Judges competent to the Inhabitants within the Burgh The Lords Found that the Town being only a Burgh of Regality had jurisdiction within the same And the Baillies jurisdiction is Cumulative and not Privative unless they had it expresly by their Infeftment Privative and that in such cases Locus est Praeventioni D. 132. Parkman contra Allan Eod. die IN the late War betwixt his Majestie and Holland and Denmark a Swedish Ship being taken by a Scots Caper and adjudged Pryze A Reduction of the Admirals Decreet was pursued upon diverse reasons and in special this That by the Treatie betwixt his Majestie and the Crown of Sweden the Subjects of Sweden may traffique with their Alleys though Enemies to h s Majestie with freedom and carry in their Ships Counterband Goods Except such as are contained in an Article of the said Treaty being for the most part Armes and Instrument a Bellica and that the Goods in question which they had carried in their Ships to Holland viz. Tarr and stock fish were not of that nature 2. That when the said Ship was taken there was none of the saids Goods aboard and that it could not be declared Pryze upon pretence That immediatly before they had carried the said Goods to Holland seing it is not unlawful not a breach of Treatie betwixt his Majestie and Sweden that the Subjects of Sweden should continue the same intercourse and freedom of Trade they had formerly with their friends though now the Kings Enemies and if they carrie counterband Goods the only hazard is that if they be deprehended carrying the same They may be confiscat conform to the Treatie with Sweden bearing si Deprehendantur which is Consonant to the custom of all Nations and of the Admirality of England It was Alledged that the Ship in Question should not have the benefit of the Treatie having Served the Danes the Kings Enemies and being fraughted and loaded with Tarr from Noraway upon the account of Danish Merchants and with stock Fish which they had carried to Amsterdam That it was expresly provided by the Treatie with Sweden that they should not carry bona hostium and that tho the Danes were not the Kings Enemies yet Tarr and Stock-fish are Counterband Tarr being a Material so useful and necessary for a Naval Warr and that by the Treatie Commeatus is counterband and Stock-fish falleth under the notion of Commeatus and that by the Commission given by the Admiral to the Capers they are empowered expresly to seize on Ships not only while they have counterband Goods caryeing to his Majesties Enemies but upon the return having sold and disponed upon the same It was Replyed 1. That by the Law of Nations which is clear from Grotius de Jure Belli Goods that are usus promiscui both in Warr and Peace are not vetita and counterband and two Nations being engaged in Warr with others that are at friendship with both are allowed libertie of Trade with either as to such Goods And that Tarr is of that same nature and Commeatus except in the case of portus clausus or Civitas obsessa and from which deditio may be expected if not supplied 2. His Majesties Declaration of Warr with Holland bears that Ships carrying counterband to Holland if they be mett with carrying the same may be seized and that his Majesties Declaration Emitted of purpose in relation to other Nations should be considered as lex Belli and not a privat and unwarantable style of a commission given periculo petentis In this many Points being debated It was Found by the Lords that Tarr is Counterband 2. As to that Point whether a Ship having carried counterband Goods to Enemies may be seized upon in her return home-ward having sold and vented the same to the Enemies and not deprehended carrying the same They thought fit to know his Majesties pleasure and the custom of England and a Letter was writen to my Lord Secretary to that purpose 3. The Ship in question having carried counterband Goods to Holland and having thereafter made a Voyage to France and there having taking a new Loading of Salt upon the account of the Owners and being taken upon her comeing from France If it should be found that she might have been seized upon pretence that they had carried the said Goods to Holland It was Debated whether the Return should be understood of the immediat Voyage from Holland to France or until they should return to Sweden And as to this part the Lords thought good to take advice of Merchants In praesentia Lockhart Wedderburn alt Wallace vide feb 4. 1668. D. 133. Mckitrick contra _____ Eod. die THE Prescriptions of Reversions and Expiring of Legals and the taking advantage of the same are so odious That the Lords inclined to find that necessary Depursments upon reparation of Houses should not be allowed to a Compryser in a Declarator to hear and see it found that he was satisfied by intrommission reserving action to him for the same But before answer they ordained the Reporter to consider the Depursments and to Report whether they were absolutely necessary This is hard in the point of Law intromission being to be understood civiliter cum effectu of that which is free all charges deduced Hay Clerk D. 134. Trotter contra Trotter Eod. die THE Lords Found that a Wadsetter having comprised for his principal Sum may in competition with another Compryser pass from his Comprysing and return to his former Right of Wadset Gibson Clerk D. 135. Anderson dean of Guild of St. Andrews contra James Tarbat 16. January 1668. WIlliam Tarbat having granted Bond for 300 pounds to his Son James and other Children the said Bond was Reduced at the instance of a Creditor Because it was subscribed only by one Notar being a matter of importance Though it was alledged that it resolved in three several Bonds and it was Equivalent as if the three Bonds had been granted for 100 pounds respective For the Lords considered that the Bond being one and individual the importance as to the interest of the debitor is the same whether it be granted to one or to diverse Persons D. 136. Binnie contra Binnie 17. January 1668. MArgaret Binnie being induced to grant a Bond obliging her to resign some Tenements of Land in favours of herself and the Heirs of her Body which FailÈieing in favours of her Brother
Decreet given thereupon and the same standing there was nothing now to be advised but the Decreet ought to be Extracted or at the most a new Commission should be given to the Pursuer The Lords notwithstanding without respect to the said former Decreet did proceed to advise and Vote whether there was alse much proven as to condemn the said Ship It was urged by some of the Lords That tho res were integra and there were no Decreet there is no Ground to adjudge the said Ship upon the pretences foresaid seing the Skippers Oath being a Party had been taken upon the same and he had declared upon Oath that he had changed his domicile and his Residence was at Stockholme and his Oath being taken they needed no other Probation specially seing his Oath is adminiculate with the Depositions of his Wife and others taken upon the Commission foresaid at Stockholme being positive that he had Transported his Domicile there and no other Probation was adduced to the contrary It was farder urged That the Skipper being a Burgess and being for the time in Sueden with his Wife and his Child The Suedish Owners were in bona fide to think that he was such a person as by the Treaty they might make use of as Skipper And what ever could be pretended against him for his own interest ought not to militate against them It was also urged That His Majesty had written a Letter in favours of the Strangers recommending them to the Lords Favour and Justice and it would be thought a strange Return that the Lords should condemn both the said Ship and the Admirals Decreet absolvitor and their own former Decreet It was nevertheless Voted and Found by plurality that the Ship ought to be adjudged upon the said pretences that the Kings Enemie had the interest foresaid both as Skipper and as Owner diverse of the Lords dissenting D. 208. 23. Decemb. 1674. inter easdem THE Sueds having given in a Bill desireing that seing they offered to prove positive that the Skipper had changed his Domicile they might have a Commission to what Judges the Lords pleased for proving the said Alledgance Some of the Lords were of Opinion That the Alledgance being unquestionably Relevant was yet competent In respect the Lords had by their Interloquitor Found that they had already proven presumptively that the Ship in question did not belong to the Kings Enemies and alse long as that Interloquitor stood they needed not prove any farther the onus probandi of the contrair lying upon the Caper And the said Interloquitor being since reversed and taken away as said is It was neither needful nor competent until now to offer to prove positive the said Alledgance The Lords notwithstanding Found by plurality and by one Vote only that the Alledgance was not now competent the President being of a contrair opinion but being carryed by one Vote before it came to him he could not Vote Je me suis estendu trop sur cet Arrest a cause que les plus habiles scavans des Senateurs opinoyent pour les Estrangers Maistre du Navire aucuns des ceux qui estoyent de l' autre coste estoyent parens ou aliez de Luthquharne qui estoyt Partie gagnoit par l' Arrest 2000 Livres Sterl ou environ l' emportoit par une voix seulement D. 209. Pitmedden contra Seatones eod die IT was Found in the case Sir Alexander Seaton of Pitmedden contra Seaton of Blair That Pitmeddens Brother tho he was Appearand Heir to a Baron he could not have a Moveable Heirship because he was not actual Baro. Some were of opinion that as to that Advantage and priviledge of having a Moveable Heirship it was sufficient that the Defunct was of that quality that he was one of these Estates seing a person once Baro tho he be denuded is semper Baro as to the effect and interest foresaid And a Prelate tho for Age he should become unable to serve and dimit yet is still a Prelate as to that effect And the Appearand Heir of a Baron who has Right and in potentia proxima to be a Baron and is Peer to Barons and may be upon the Assize of Noblemen and Barons if he should be prevented with Death before he be Infeft it were hard to deny him the priviledge foresaid that his Heir should have his Movable Heirship And if his Heir would have the benefite as to a Moveable Heirship his Intromission with the same ought to import a Behaviour Lord Forret Reporter D. 210. Mr. David Thoirs contra Tolquhon 2. Jan. 1675. MR. David Thoirs having acquired from John Forbes the Lands of Craigfintry did pursue an improbation against the Laird of Tolquhon of a Bond and Comprysing deduced thereupon of the said Lands against John Forbes of Gask the said John Mr. David Thoirs's Authors Great Grandfather And Certification being granted and being urged that it should be Extracted It was Alledged that it could not be Extracted but ought to be stopt because the said Bond whereupon the Comprysing was deduced and whereunto and to the Comprysing thereupon Tolquhon has Right by progress was granted to the deceast Mr. William Forbes Advocate and Registrate in the Commissar Books of Aberdeen in Anno 1632 And the Extract was now produced which after so long time and the time of Troubles the Registers being all in such disorder ought to satisfy the production being not only adminiculate but also homologate in manner aftermentioned by Patrick Forbes Grand-child and Successor to the Granter and the said John Forbes the said Patrick's Son In sua far as the said Bond was granted to the said Mr. William Forbes a person above all exception and all possible Diligence both real and personal had been used thereupon by Horning Comprysing and Caption and that the Granter had Suspended the said Bond upon diverse Reasons and did never question the truth of the same and Disponed his Estate to Patrick Forbes his Appearand Heir with the burden of his Debts and it cannot be thought but that he understood the Debt in question to have been comprehended under the general of Debts having been so much distressed for the same And that the said Patrick did homologate the truth of the said Bond In sua far as by a Minute of Contract betwixt him and Tolquhon he had taken a Right from Tolquhon to the said Bond and Comprysing and was obliged to pay for the same the Sum thereinmentioned And the said Patrick having Disponed to his Eldest Son William his Estate the said John was served Heir to the said William his Brother and had homologat also the said Bond by Contract betwixt him and Tolquhon whereby he dispones the Lands Comprysed of new again to Tolquhone and ratifies the said Apprysing and Grounds thereof Which Contract albeit when the said John was Minor was made with consent of his Friends and Lawyers most deliberately the said Mr. David Thoirs
cross with certification pro confesso seing no person could be holden as confest who is not personally apprehended Mr. Thomas Hay Clerk D. 244. Duke of Monmouth contra Earl of Tweeddale eod die THere being a Transaction betwixt the Duke and Dutchess of Monmouth and the Earl of Tweeddale whereupon a Discharge was granted by the said Duke and Dutchess to the said Earl with consent of their Curators which was also superscribed by his Majesty taking burden for the Duke and Dutchess with an obligement that they should ratify after Majority The said Duke and his Lady pursued a Reduction of the said Discharge upon a reason of Minority and Lesion It was Alledged That all Parties haveing Interest were not called viz. The Officers of State for His Majesties Interest seing His Majesty was so much concerned that if any thing were evicted from the Defender His Majesty would be Lyable for the same The Lords Repelled the Defence Without prejudice to His Majesties Advocat to appear for his interest if he thought fit Stathurd Reporter Gibson Clerk D. 245. Irving contra Caruther 6. February 1675. THE Summonds being referred to the Defenders Oath who having declared that as to what was referred to his Oath he could not remember nor be positive It was debated amongst the Lords whether the Oath did prove or not Or if the Defender should be holden as Confest In respect he was to declare de facto proprio recenti and in such a case the pretence of non memini is neither excuseable nor relevant And so it was Found by the Lords tho some were of the Opinion that a person compearing and declareing upon Oath that to his knowledge he did not remember could not holden as confest seing he cannot be said to be contumacious and to want Memory is not a fault And after a party has declared it is only to be considered whether the Oath proves or not Mr. John Hay Clerk D. 246. Burnet contra McClellane eod die A Father being pursued as Behaving himself as Heir to his Son and Litiscontestation being made and Witnesses adduced the time of the Adviseing It was Alledged That the Father could not represent his Son as behaving because the Defunct had a Brother who was produced and at the Barr Whereto It was Answered That in hoc statu the Defence was not receivable and it could not be said to be noviter veniens seing the Father could not be ignorant that he had another Son The Lords in respect of the State of the Process would not receive the Defence tho verified instanter unless the Son would suscipere judicium and be content that the Process should proceed as against him which appears to be hard seing that which was to be proven was not only that the Defender intrometted but that he was appearand Heir and in casu notorio no probation was to be respected to the contrary and tho the Father could not but know that he had a Son yet he might be ignorant that his Son would be preferred to himself as to the Succession of his own Son and in damno vitando ignorantia Juris is excusable Mr. J. Hay Clerk D. 247. _____ contra Captain Martine and others 9. February 1675. A Ship being taken by a Caper and being found by a Decreet of the Admiral to be a Prize Thereafter upon a Decreet of the Lords reductive of that of the Admiral being found to be a free Ship the Stranger did urge payment against the Captain and the Owners of the value And It was Alledged That the Decreet of the Lords Ordaining Restitution was against them as correi debendi and not in solidum and that they are only lyable for their own parts Whereunto It was Answered That though it was found That the Captain had probable Reasons for bringing up the said Ship yet upon the matter the Stranger was wronged by the taking of his Ship and in casu delicti by spuilÈie or wrongous intromission or otherways Decreets against the Persons therein contained are construed to be in solidum and the Stranger cannot know what the respective Interests and Parts of the Owners are and ought not distrahi and to be put to Process against every one of them for declaring of their Parts The Lords Found That they were lyable in solidum Reserving their Debate and Relief amongst themselves as to their several Interests and Proportions Lord Forret Reporter Gibson Clerk D. 248. Burd contra Reid eod die THE Lords having formerly Found That the Cedents of Personal Bonds are lyable only to warrand debitorem esse but not esse locupletem It was pretended That there being a Question concerning Warrandice of a Right of Annualrent out of Land the same should be warranded no other way But The Lords Found That the Warrandice of Lands or of such real Rights upon or out of Land are absolute unless they be expresly limited and qualified by their Right Hamilton Clerk D. 249. Vetch contra the Creditors of James Ker and Peter Pallat. eod die SIR Robert Stewart in Ireland and his Son being Debitors by Bond in the Sum of 800. lib. starl to the deceast James Sanderson which Bond being conceived in the Form of English Bonds did not bear Annualrent The said James did assign the said Bond in Favours of Ronald Graham in trust and to his own behoof upon a Back-bond and thereafter did assign the said Back-bond in favours of James Ker and Robert Broun Merchants as to two Parts to the said Ker and the third part to Broun Sir George Maxuel of Pollock being Trustee and acting in name of the said Stewarts did grant a Bond to the said Ker and Broun making mention of the said Bond granted by the Stewarts and of the Assignation made by the said James Sanderson to the said Broun and Ker and that after Compt and Reckoning there was only resting of the said Sum 300. lib. sterl which the said Sir George in name of the said Stewarts is obliged to pay within three Moneths after that Stewarts Bond should be delivered to him with an Assignation or Discharge The said James Ker being deceased his Executors did intent Action against the said Sir George Maxuel for his part of the said Sum viz. 200. lib. In this Process William Vetoh did compear for his Interest and did alledge that the Sum in question due by Sir George Maxuel did belong to him having fallen under the Rebellion of the said James Sanderson and the Gift of his Escheat first Gifted to David Rodger fra whom the said William had right and thereafter to the said William himself and tho the said Bond granted by Sir George Maxuel was granted to the said Ker and Broun yet it was granted for the same Sums that were due by the said Stewarts to the said Sanderson as appears by the Bond granted by the said Sir George Maxuel so that the foresaid Sum due to Sanderson and the Bond for the same having as said is fallen
Back-bonds which upon the matter are Translations whereas a Singular Successor has none 7. That such Back-bonds should affect Comprysings not only before but after Infeftment during the Legal But thereafter should cease to qualify the same It seems to be inconsistent with and against the principles of Law In praesentia D. 375. _____ contra _____ eod die THE Lords Found That a Bishop and Executors had Right only to the Quots of such Testaments as were confirmed in the Bishops time in his own Right as Bishop for the time And the said Quots being in effect Sentence-Silver dies cedit by the Confirmation so that whosoever is Bishop then has Right to the same They Found likewayes That Quots being a part of the Bishops Patrimony and Rent The Quots of all Testaments confirmed within the half Year after the Bishops decease did fall under the Ann and belong to the Bishops Relict and Executors Vide Carpzovium lib. 1. Jurisp Consistorialis de Salario defuncti Pastoris semestri D. 376. Spence contra Scot 7. July 1676. IN a pursute for payment of a Sum of Money It was Alledged That the Pursuers Cedent was Tutor to the Defender and had not made his Accompt Which Defence the Lords sustained against the Assigney But it was their meaning that the Pursuer should not be delayed and and that a competent time should be given to the Defender to pursue and discuss his Tutor Glendoich Reporter Mr. John Hay Clerk D. 377. Johnstoun contra Rome 8. July 1676. IN a pursute upon the passive Title of Successor Titulo Lucrativo In swa far as the Defender had a Disposition from his Father without an Onerous Cause The Lords sustained the pursute albeit it was Alledged by the Defender he had made no use of the said Disposition and was content to renounce the same which the Lords Found he could not do being delivered to him A Concluded Cause Advised Mr. Thomas Hay Clerk D. 378. Finlaw contra Litle 11. July 1676. A Legacy being left in these Terms viz. That it should be payed out of the Testatrix her Household Plenishing and Debts due upon Compts The Lords Found That albeit the said plenishing and Debts should not extend to satisfy the said Legacy that it was not a limited Legacy but ought to be satisfied out of the other Executry and that the saids words were only executiva as to the order and way of Payment in the first place and Interpretatio should be ut actus valeat especially seing the Legator was the Defuncts Relation And it is to be presumed that the foresaid qualification was only as to the way of payment In respect the Defunct did look upon her Plenishing and Debts foresaid as sufficient to pay the same And did not declare that the said Legacy should be only payed out of the same and in case it should be short that she should have no more And it appeared to the Lords that the Executors had given up a very inconsiderable Inventar of the plenishing and far short of what a person of the Defuncts condition and profession being a great Innkeeper behoved to have in order to her Calling Actores Dalrymple c. alteri Hog in praesentia D. 379. Bishop of Dumblain contra Kinloch of Gilmertoun eod die IN Anno 1620. His Majesties Grand-Father did Annex the Deanry of the Chappel Royal to the Bishoprick of Dumblain And did mortify thereto an Annualrent of Ten Chalders of Victual out of the Lands of Markle and Traprane By vertue of which Right the Bishops of Dumblane have eversince possest the said Annualrent until 1638. that the Bishops were supprest And thereafter Mr. Alexander Henderson and Mr. Robert Blair being provided thereto as his Majesties Chaplaines did continue in the possession of the same till the Bishops were Restored in 1661. and since the Bishop of Dumblane was in possession of the same But Francis Kinloch now Heretor tho he had been in use of payment of 8. Chalders of Victual as a part of the said Annuity out of his Lands since he acquired a Right to the same being charged at the instance of the said Bishop did Suspend upon that Reason viz. That the said Annualrent was Wadset by the Earl of Bothwel in the Year 1587. to Mr. Thomas Craig for 7000 Merks And John Murray Earl of Annandale having acquired the Right of the said Annualrent and having resigned the same in savours of K. Ja. to the effect it might be Mortified as said is The King by the said Mortification could give no other Right than what flowed from the said persons his Authors which was redeemable as said is and de facto the said Right was Redeemed In sua far as the Right of Reversion of the said Annualrent having come in the person of the Duke of Lennox Donator to the Forefaulture of the Earl of Bothwell and from him to the Earl of Balcleugh and from the late Earl of Balcleugh to Sir John Scot of Seatoun Caetera desunt D. 380. Jaffray contra Murray 8. November 1676. A Party being pursued upon the passive Titles and in special upon that of Charged to enter Heir and having offered to Renounce It was Replyed that he could not Seing Res was not integra In Respect he had granted a Bond Of purpose that thereupon the Estate might be Adjudged The Lords Found That albeit he had not granted the Bond upon the designe foresaid yet the Estate being adjudged and incumbered by his Deed he ought to be Lyable to the Defuncts Creditors pro tanto Or to purge Gibson Clerk It is Thought That if the Appeirand Heir should dolose grant a Bond that the Defuncts Estate might be thereupon adjudged ought to be Lyable in solidum But if he grant a Bond which is a lawful Deed and thereupon his Creditor adjudge which he could not hinder It is hard to sustaine a passive Title against him unless his creditor having adjudged were satisfied by that course In which case seing the Defuncts creditors are prejudged It is Reason he should be Lyable pro tanto D. 381. Steuart contra Hay 9. November 1676. LAnds being bought after Interdiction A Reduction of the said Interdiction was pursued at the instance of the Buyer upon these Reasons 1. That Interdictions by the Common Law are only of prodigi And Interdictors are in effect given Curatores to them And by our custom albeit Interdictions are granted sine causae Cognitione upon Bonds granted by persons interdicted upon that consideration and narrative that they are persons facile and not fit to manage their Estate whereupon the Judge presumes that they are such and upon a Bill gives warrand to publish the same yet the Interdiction in question ought not to be sustained seing it is not the ordinary stile of other Interdictions and the Bond of Interdiction bears no narrative of Facility but only that the Granter for the standing of his Family being very Ancient did oblige himself not to Dispone his Estate