Selected quad for the lemma: majesty_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
majesty_n	letter_n	lord_n	precedent_n	3,537	5	11.1764	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52358	Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.	Nisbet, John, Sir, 1609?-1687.; Scotland. Court of Session.	1698 (1698)	Wing N1170; ESTC R16027	472,476	492

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 Coalȝiers 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

entering to the possession of Lands whereof the Defunct was in possession but his Title is found thereafter to be void Will his medleing import Behaviour aditionem passive Gift THE late King having granted to a certain person the Gift of an Office at His Majesties presentation There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office notwithstanding that the person who had the former Gift ad vitam or culpam is yet Living and is not deprived And it is now desired that His Majestie should not only ratify the said late Gift but that of his certain knowledge proper motive and by vertue of his prerogative he should give a new Gift of the said Office Revocking and annulling the former Gift granted by the late King to the present incumbent and giving power to the person to be presented by the New Gift to enter presently to the Exercise and benefite of the said Office by himself and his Deputes And ordaining the present Incumbent to deliver up the Registers and recommending to the Lords of Session to construct His Majesties Gift with the greatest latitude that their Nobile Officium can allow And containing a promise to ratify in Parliament Quaeritur Whether a Gift of the Tenor foresaid be according to Law It is Answered That the samen is altogether against Law and Form for these Reasons 1mo By the common Law there can be no valid Gift of an Office or place unless the same be Vacant and the manner of Vacation exprest in the Gift seing the Office belonging to another who has Right to and in possession thereof the same is not in the hands and power of these who has Right to present so that they may give the same 2do If it be pretended that it may be taken periculo petentis and that the Incumbent may be thereafter deprived or may decease and that the Gift may be effectual in either of the said cases Such a pretence is both against Common Law and our Practique seing it imports votum captandae mortis And by an express Act of Parliament Gifts of Escheat should not be given before they fall by Horning and there is the same Reason as to all other Gifts 3tio That a former Gift granted by the late King who undoubtedly had Right to give the same should be Revocked and Annulled without a previous citation of the person concerned and without so much as a hint of any reasons why his Right should be taken from him is a Streach not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere neminem laedere 4to That what cannot be done in Law and Justice should be desired to be done by vertue of His Majesties Prerogative is an Injury to so just a Prince And it is of a dangerous preparative that His Majesties Prerogative should be pretended for Favours to private persons that are Unjust and Illegal 5to Whereas it is desired that it should be recommended to the Lords of Session to construe His Majesties Gift if it should be granted and if there should be any Question upon the same with the greatest Latitude that their Nobile Officium may allow The said Desire and Stile is Illegal and without any precedent and should not be a precedent hereafter seing there ought to be no prelimitation upon the Lords of Session And it is their Duty and may be expected from them that they will construe His Majesties Grants according to Law and Justice And their Nobile Officium being as the Highest Judicatory to do Justice according to Law they have no Latitude to recede from the same Gift of Escheat with Backbond IF a Backbond do so affect the Gift of Escheat that the Donator cannot Assign the same Gifts of Forefaulture LAnds being Disponed by His Majesty as being in his hand upon Forefaulture conform to a certain Decreet of Forefaulture mentioned in the Right with the Clause cum omni Jure and the King having the time of the granting the Disposition Right to the Land as being in his hands for committing another Deed of Treason after the former whereupon there was not a Decreet the time of the Disposition Quaeritur If the said former Decreet be taken away whether the Donator will have right to the Lands upon the Supervenient Deeds and new Decreet of Forefaulture following thereupon Ratio Dubitandi The said Right is upon a special Ground causa limitata limitatum producit effectum And the Clause ●um omni Jure is only Clausula executiva and is only to be understood of Inferior Rights to Mails and Duties by reason of Ward Non-entry or otherwayes and not of the right of Property upon other Grounds Swinton Gifts of Recognition A Gift of Recognition bearing Lands holden of the King Ward to have been Disponed but not specifying the same or special as to the Lands but not as to the persons in whose favours the Disposition is made if it will be valid Gift of Ward THE Superior having gotten a Gift of his own Ward either to himself or to another for his behoof gratis Quaeritur If the Sub-vassals may claim the benefite of the said Gift and to be free of the said Ward Ratio Dubitandi That in effect the said Gift is a Discharge of the Ward which being Discharged to the Superior is Discharged to the Subvassal whose Property falls in Ward only consequentially and on the other part as the Superior and Donator to the Ward may take advantage of the same both against the Vassal and Subvassals the Vassal ought not to be in a worse case than another Donator If Gifts of Ward and Non-entry prejudge singular Successors THere are some Casualities which are Fruits of Superiority and have Tractum temporis as Ward and Non-entry c. And these being Gifted will be effectual during the whole time of their endurance as to the Granter and his Heirs But there may be question as to singular Successors Whether the Donator will have right to the Ward and Non-entry for Years after the Giver is denuded Ratio Dubitandi That resoluto Jure dantis resolvitur jus accipientis and such Gifts are of the nature of Assignations to Mails and Duties which are not effectual but during the Right of the Cedents And the Ward and Non-entry do belong to the Superior by reason he wants a Vassal to serve him and the singular Successor having that prejudice he ought after his Right to have the benefite of the Casualities Vide Liferent-Escheat Quaest 7. in Lit. E. Goods belonging to the Rebels at the Horn. A Creditor having affected the Moveables of the Defunct by confirming himself Executor Creditor and having got possession of the same whereby he is satisfied of his Debt Quaeritur If the same may be evicted from him by a Donator to the Defuncts Escheat Answer It is thought they cannot be evicted Seing

Right be loused and extinct by a Decreet equivalent to a Reduction yet the Redeemer must be reseased After Redemption What way should the Redeemer be reseased Whether upon the Resignation of the Party infeft upon the Wadset Or what other Way Answer Wadsets were of old granted upon Reversions not contained in the Body of the Right and then the Disponer was in use to get a Regress whereupon the Superior did re-enter him but now the Reversion being in the Body of the Right the Disponer is in the same case as if he had a Regress and should be infeft in the same manner The Wadsetter being denuded by the Decreet he has no Right in his Person to resign and therefore it is thought that the same course should be taken both in the case of Redemption and Reductions as formerly when Regresses were in use Reduction Ex capite Fraudis IF a Reduction be pursued of the Right as Fraudulent may not the Defender alledge that the Disponer had Bona either Movables or others equivalent to the Debt which may satisfy the same and offer to satisfy the Pursuer upon an Assignation of the Debt due to him to the effect he may have Recourse against the said other Estate of his Author Answer It is thought the saids Defences would be relevant and Assignations could not be denyed Infeftment after Reduction A Person having disponed Lands and resigned and being so divested by Charter and Seasine If he should thereafter reduce the said Right Quaeritur what way he shall be reseased Seing the Right was not Jus Nullum sed Annullandum and the Seasine and Resignation that divests is Factum quod non potest fieri infectum Reduction Ex capite Metus QVaeritur If Rights being made dolo vel metu and upon these Heads or Ex capite Lecti being reduceible and such Actions being in rem a singular Successor acquireing a Right from the person lyable to such actions will he be in the same case as Persons acquireing from Confidents Ratio Dubitandi Acts of Parliament are stricti Juris and cannot be extended Reduction upon Minority IF Interlocutors in Jure against Minors may be reduced ex capite Minoris aetatis and Laesion Answer Negative Seing Minors cannot be restored but where either there is captio by the deed of another to their prejudice or by their own deed through their Facility or where there is an omission of Defences But where Defences are not omitted and being proponed and advised are repelled as not relevant The Interlocutor which is a Deed of the Judge cannot be reduced but upon iniquity Reduction Ex capite Lecti A Father having acquired a Right to his Eldest Son of certain Lands reserving his own Liferent and a Power to dispone etiam in articulo mortis And thereafter having on Deathbed made use of the said Faculty and disponed the said Lands to a second Son Quaeritur If the said Right may be questioned by Reduction Ex capite lecti as being made in prejudice of the Heir Ratio Dubitandi That the said Disponer could not do any Deed then in prejudice of his Heir And on the other part that the eldest Son having accepted the said Right with the said Provision cannot question the same 2do The Heir is not in this case to be considered as Heir but as quilibet Seing he is not in the case of an Heir succeding in a Right as Heir seing the Right was not in the Person of his Father and he himself was Fiar with the quality forsaid 3tio The Law of the Majesty is only in the case of Rights granted to a Person and his Heirs simply and the reason of the Law is express that the Defunct when he was in health having had no thought to dispose of his Heretage when he grants Rights on Deathbed of the same is presumed to have been imposed upon or that the said Rights on Deathbed were Elicite or granted by him in Delirio fervore passionis instantis Whereas the said Faculty being reserved in the Right argues the Fathers intention ab initio if he should think fit even then etiam in articulo being sedati animi Nevertheless the said Right was reduced Davison contra Davison November 1687. Re-entry after Redemption IF Wadset Lands be holden of the Superior and the Reversion be contained in the Charter If the said Reversion be not equivalent to a Regress in respect of the Superiors consent to the same And what way the Vassal may be entered upon the Redemption especially if the Creditor be dead and his appearand Heir will not grant a Renunciation and cannot resigne Answer The Superior may be urged to grant a Charter making mention of the Wadset Redemption and Declarator and by Law that he is lyable to re-enter the Vassal having redeemed Regalia MAjora Regalia cohaerere dicuntur Imperatoris ossibus ut ab eo avelli nequeant Imperator alios sibi assumere potest in partem Solicitudinis non vero in plenitudinem Potestatis quae omnem respuit Divisionem quasi Sanctum Sanctorum est in quod nemo admittitur nisi Princeps Bes Thes in Litera K. 3. verbo Kayserliche P. 450. Integra Territoria seu Provinciae Ducatus Principatus Comitatus c. cum Jurisdictione territoriali in feudum Statibus Imperii Ducibus Principibus Comitibus Civitatibus Imperialibus conceduntur cujusmodi feuda Imperii immediata omnia regalia Jura Emolumenta eo spectantia continent Frit Jus Fluviat P. 106. n 3. Regalia non sunt Res sed Jura Regi aut alii Superiorem non recognoscenti in signum supremae potestatis necnon in praemium immensi laboris quem pro Imperio Regimine sustinent ad Rempublicam tuendam competentia Heringius de Molendinis q. 9. n 47. sequen Regality IF Rights of Regality imply and import a Right to Escheats upon Horning albeit they be not express thereanent Ratio Dubitandi It is the common Opinion that they are imported Ex adverso Gifts of Escheat upon Rebellion are inter maxima regalia and Rights of the same are stricti Juris 2do All Letters of Horning bear That the Rebels Goods should be escheat and brought in for His Majesties use 3tio Regalities being Priviledges of Jurisdiction and Exemption from the ordinary Courts of Shires and Justices carry only such Escheats as are incident to Jurisdiction as Mulcts and Fines of persons unlawed or sentenced in Courts of Regality 4to Declarator of Escheats cannot be pursued before Regality-Courts but only before the Session 5to In other Cases of Escheats upon account of Crimes or Delicta as for Theft Slaughter the Crime is not against the King directly but consequentially as concerned in the Loss of a Subject But Rebellion on Horning is directly against the King It will be fitt to see the Right of an Ancient Regality Suppose that the Lord of Regality has Right to the Escheat upon Horning will he have Right only to

of Parliament their Sallary being enlarged and settled upon them otherwayes And if during the time the said Lords had their Sentence Silver any of them had deceased before Sentence tho the Process had been commenced and advanced beyond Litiscontestation it cannot be said that the Executors of a Lord deceasing before the Sentence could claim any part of the Sentence Money where the Sentence is pronounced after his decease 3. By the 28. Act of his Majesties Parl. 1661. the Quots of Testaments are discharged and yet the Bishops being restored to the Right of Quots the same will be due for any Testament confirmed thereafter notwithstanding of the said Act of Parliament whereas if Quots were due from the time they became confirmable they could not be claimed tho confirmed since the Bishops were restored as said is to their Quots as being discharged by the said Act of Parliament The Lords did also Find That the Bishops Relict and nearest of Kin had Right to an Ann even before the late Act of Parliament being the 13. Act of the 3. Session of His Majesties second Parliament concerning the Ann due to the Executors of Bishops and Ministers In respect by a Letter of His Majesties Grand-father in anno 1613. and Act of the Bishops thereupon an Ann was Found to be due to the nearest of Kin of Bishops But in regard by the said Letter and Custom before the said late Act of Parliament the Ann in relation to Bishops was if the Bishop deceased before Michaelmass after the Moneth of _____ his Executors had the half of that year as belonging to the Bishops Incumbent Jure proprio and the half of the next year as Ann the half of the Rent of his Benefice for the half year preceeding Michaelmass the other half being due to him as Incumbent and fallen under his Executry Whereas by the late Act the said Ann is so ordered that the Bishop or Minister surviveing White-sunday the half of that year does belong to him and his Executors upon account of his Incumbency and the other half for the Ann And the Incumbent surviving Michaelmass he is to have the whole Year as Incumbent and the half of the next year is to be Ann Therefore the Lords Found That the late Bishop having deceased before Michaelmass and before the said late Act of Parliament the Ann should be as it was formerly In the same Process It was debated among the Lords more fully than at the Bar whether the Quots of Testaments should fall under the Ann And it was urged by some that the Quots of Testaments are but casual Obventions and that they are due as said is upon the account foresaid viz. That Testaments are confirmed by the Bishop or his Officials and ratione operae and as Sentence-Silver so that they cannot be due but to the present Incumbent who does a duty and that Compositions for entering of Vasals and Liferent Escheats and Non-entrys and such like casualities do not fall under Ann. Whereunto It was Answered That by the Kings Letter by the Act of Parliament and by the Canon Law the half of the Rent of the Benefice Stipend and Living fall under the Ann and the Quots of Testaments are a considerable part of the Bishops Rent especially in Edinburgh and undoubtedly is a part of his Living and Benefice And the Rent of Milns which is casual and depends where there is no astriction upon the arbitrary will of Parties to come or not to come to the same and is likewayes due ratione operae doth fall under Ann As also the Rent of Fishings and such like which are casual And there is a great difference betwixt Quots which is an ordinary yearly Rent and cannot fail so but there will be still Testaments confirmed and the casualities of Superiority as Liferents c. which are so uncertain as that it cannot be said they are the Bishops Living And the Argument that Quots are due ratione operae and by reason of actual confirmation which cannot be due by the Executors or Relict is of no weight seing the other constant Rent of Stipends and Benefices is due ratione operae and because the Bishop or Minister serveth which is not prestable by Executors or Relicts The Lords notwithstanding enclined to Find That the Quots do not fall under the Ann but upon the motion of some of their Number that the Interloquitor being to be a preparative should be further considered they thought fit not to proceed to the Voting Gibson Clerk Forret Reporter D. 195. Craig contra Edger 20. Novemb. 1674. THE Lords Found That a Bond bearing Annualrent being Assigned by a Woman to her former Husband by her Contract of Marriage and the Assignation not being intimate a Retrocession did settle again the Right of the said Bond in the Person of the Wife Quia unumquodque dissolvitur eo modo quo contrahitur And the said Bond being thereafter assigned in favours of the second Husband he and his Executors had Right to the same and that it was not in bonis of the first Husband though the Retrocession was not intimate until after his decease Lord Glendoick Reporter Mr. John Hay Clerk D. 196. Thoirs contra Tolquhon eod die MR. David Thoirs in an Improbation at his Instance against Tolquhon of a Bond did crave Certification because the Principal was not produced but an Extract out of the Commissars Books of Aberdeen The Lords upon a Report having debated amongst themselves what was fit to be done in the said Case seing it appeared that the said Pursuite was intented not of design to question the Bond upon evident and probable Grounds of Falsehood but only to have it produced and it appeared by many Presumptions that the Bond was a true Deed and never questioned by the granter ex capite falsi tho he had suspended upon other Reasons And there had been much diligence by Decreets Horning and Comprysing upon the same and yet the Bond being of an ancient Date beyond 40 years there was no person living that could prove the Tenor thereof and declare that they knew the same to be a true Deed And on the other part the Lords could not refuse to grant Certification seing an Extract does not satisfy in an Improbation where the Principal was not produced It was moved by some of the Lords That if the Pursuite was not intented within the years of Prescription that it should not be sustained seing albeit causa falsi doth not prescrive where the Paper or Subject craved to be improven is produced and the Pursuer offers to improve and make it appear that the same is false yet when the Improbation is only to try the condition of the Defenders Right and in order to a Certification if the Principal cannot be exhibit it is not properly causa falsi And the effect of the Certification is only that the Write for not production should be holden as false praesumptive and fictione Juris And upon the matter it