the subsequent Terms to the Debitor which they were in bona fide to do knowing no Law nor Custom to the contrare The Lords Repelled the Defense and found the Arrestment to be valide for that Terms Duty that was then running and found that the Arrestment was rather like to an Inhibition then an Apprizing which gave present payment Scot of Hartwood-mires contra November 6. 1669. SCot of Hartwood-mires gave in a Bill of Suspension of a Decreet in foroâ— which the Ordinar reported to the Lords the Reason of Suspension was that he being Conveened as Representing his Father to pay the Debt in question for which his Father was Cautioner he offered to prove payment denying alwise the passive Titles and having proven the most part payed by Discharges granted to the Principal Debitor he was Decerned for the rest and now offers to Renunce to be Heir to his Father conform to his Protestation in the first Act. It was answered that the Defense of payment does never suffer the proponer to deny the passive Titles or put the Pursuer to a necessity to prove them by the constant custom founded upon good Reason because the proponing upon any positive Right of the Defuncts is a behaviour as Heir and in the Act of â—iâ—is contestation a Term is only assigned to the Defender to prove payment and the Protestation in effect is rejected because there is no Term therein assigned to the Pursuer to prove the passive Titles in case the Defender failed to prove payment neither could there be any by our Custom The Lords refused the Suspension and found that the offer to prove payment Liberated the Pursuer from proving the passive Titles Lady Towy contra Captain Barclay November 9. 1669. THe Lady Towy having pursued Improbation of a Bond of an bundreth thousand Pounds alleadged granted by the Umquhile Laird of Towy to Captain Barclay and of a Disposition of the Estate of Towy alleadged made by the Tutor of Towy the day after the Laird of Towy died at the Barns of Towy which Tutor fell Heir-male to the Laird who had only one Daughter the foresaid Bond and Disposition being produced Judicially before by Captain Barclay though not in this Process he refused now to produce the same but suffered Certification to be granted against it The question having arisen whether any further Process could be in the Improbation in respect that the principal Writs were not produced but Copies bearing the Tenor Date and Witnesâ—es insert The Lords the last Session did Examine Captain Barclay and Steel one of the Witnesses insert and certain others and Steel confessing the Forgery and Captain Barclay denying the same after he was Confronted with Steel and denying the having of the principal Writs the Lords sent Captain Barclay and Steel to the Tolbooth of Edinburgh to be keeped there till the Event of the Plea or further Order and did thereafter permit Steel to come out upon sufficient Caution for a great Sum and the other Witnesses inserted being Sumonned and not Compearing The Lords granted Caption against them and gave Commission to certain Persons to search for them and now Iohn Rosse the other VVitness in the Disposition and Alexander Ferguson who filled up the Date and Witnesses both in the Disposition and Bond and Subscribed Witness to the Bond and insert himself as VVitness in the Disposition but Subscribed not as VVitness in the Disposition being brought to the Bar. It was alleadged for Captain Barclay that the saids VVitnesses could not be Examined First Because there was now no Process depending in respect that the Improbation which was only civilly intented was determined by the Decreet of Certification which now is Extracted and albeit the Lords did before Examine Captain Barclay and Steel yet the Process was then depending and the Certification not Extracted 2dly It was alleadged that Rosse and Fergusson were not habile VVitnesses having appeared most partial upon the Pursuers part having stayed a long time with her in her House Et prodiderunt Testimonia in so far as not only they had declared what they would depone but that they had set the samine under their hands and that by their said Subscription they acknowledged themselves accessory to the Forgery and so by their confession they are socij criminis and being culpable of so great a Crime are infamous and their Testimonies can make no Faith against any but themselves It was answered for the Pursuer that Improbations even civilly intented are not totally determined by the Certification which is of its own nature but an Interlocutor Sentence and if the Pursuer should notwithstanding thereof find out and produce the Principal Writ he might proceed to the Improving thereof it being very well consistent that it might be holden and repute false by the Certification and might also be proven to be false and though the Pursuer could not produce the Writ yet the Process is not wholly determined by the Certification but it may be justly desired that all evidences of the Forgery that were possible without production of the Writ might be taken to remain in retentis in case the Principal should after be found for there might be clandestine Assignations of the Writs made by Barclay and Intimat at the Pursuers Dwelling-house or Forged and Antedated Intimations made up so that the Certification would not be effectual against the Assigney's and though Parties should not insist the Kings Advocat who is also Pursuer of the Process might insist that the VVitnesses might be Examined for detecting of the Forgery and there could be no case more favourable then this wherein Captain Barclay had Judicially produced the VVrits and now wilfully refuses to produce the same and if Forgers shall escape and be in no more hazard but suffer Certification though they have burnt or wilfully keep up the VVrits it will be an open Door to encourage all Forgerers neither have the VVitnesses betrayed their Testimonies albeit being Examined by the Lord Fivy a Nobleman in the Countrey one of them did Subscribe who had just ground to think that it was no voluntar Deed but that the Lord Fivy might have sufficient Authority for that effect but whatever objections were against VVitnesses they are ever Received in Improbations and the Lords at Advising of the Cause do consider what their Testimonies may work at which time only it will be proper to object The Lords notwithstanding these alleadgeances Examined the VVitnesses Rosse acknowledged that he being Servant to Captain Barclay he called him up to Subscribe VVitness to a VVrit but told him not about what it was nor did not let him hear nor see what was written therein but rolled it up and presented only to him the white paper near about the end of the VVrit and desired him to Subscribe VVitness and he saying that he could not be VVitness because he saw no body Subscribe the Captain answered that that was nothing to him and that he should stand betwixt
THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with 〈…〉 It hath been looked upon as the priviledge of Judgesâ— to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâ—eth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
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
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
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
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
Die UMquhil Dumbaith having Disponed several Lands to his Oy Iohn Rosse Brother to Kilraick the Laird of May Dumbaiths Heir-male pursues Improbation and Reduction of the Disposition and insisted upon this ground that the Disposition was false in the Date and that the Defunct was aliâ—it the time it appeares to have been subscrived and therefore is false in all It was answered that there was only an Error in the Date in respect the same Right having been conceived formerly in formerly in favours of another Dumbaith gave order to draw it over in favours of the Defender verbatim and the Writer ignorantly Wrote over the Date as it was in that first Disposition which can no ways annul the Writ especially seeing it was offered to be proven by the Witnesses insert that the Writ was truly subscribed by Dumbaith and them as Witnesses when he was in his Liege-poustie against which no alledgeance of alibi by other Witnesses not insert can be respected This having been Dispute in the English time the Witnesses were Examined before answer by three of the Judges and now the Cause was Advised The Lords found the Defense relevant to elide the Improbation that the Writ was truly subscribed before the Defunct was on death-bed and found the samen proven by the Witnesses adduc'd and thereafter assoilzied Laird of Rentoun Iustice Clerk contra Lady Lamberton Eodem Die THe Lord Rentoun insisted in the Cause against Lambertoun mentioned the 13. February 1667. He now insists on this member offering to prove that Umquhil Lambertoun by his Commission or Bond was oblidged to the Estates for exact diligence and the Pursuer being now Restored he is lyable to Count to him in the same manner as to the Estates not only for his Intromission but for his Negligence whereby he suffered other Persons publickly and avowedly to cut the Pursuers Woods of a great value and did no ways stop nor hinder the same nor call them to an Account 2ly He himself Intrometred with the said Wood at least others by his Warrand which Warrand must be presumed in so far as he having a Commission and oblidged for diligence did not only suffer the Wood openly to be cutted but applyed a part thereof to his own use and was oftimes present when it was in cutting by othersâ— The Defender answered First That he could never be lyable to the Pursuer for his Omission because his only Tittle was his Right of Property whereby the Defender was lyable to Restore to him what he had Intrometted with and not Counted for but for his oblidgement to do Diligence it was only personal granted to the Estates and albeit they Restored the Pursuer to the Estate they never Assigned him to that Obligation 2ly The Defender is secured by the Act of Indemnity except in so far as he Intrometted and did not duely Count as was found by the former Interloquitor in this Cause and as to the second member It was answered that the Defender being only Countable for his Fathers Intromission not Counted for albeit he had given warrand to others except he had received satisfaction from them it is not his own Intromission 2ly Warrand or Command is only Probable by Writ or Oath and no way by Presumption upon such Circumstances which Presumptions are also taken off by others more pregnant viz. That these Woods were cutted by Persones in Power and Interest in the Countrey who had no Relation or Interest in the Defenders Father whom he was not able to stop or hinder and most part thereof was Clandestinly cut and stolen away by meaner Persons It was answered for the Pursuer that he being Restored Succeeds in place of the Estates and as what is done by a negotiorum gestor without Warrand is profitable for these for whom he negotiats so must this be which was done by the Estates As to the Act of Indemnity the meaning thereof can be no more then that Parties who Acted shall be in no worse case then they would have been with that Party whom they followed As to the second member the Pursuer answered that what was done by others by the Defenders Fathers Commission must be his Intromission seing it is all one to do by himself or by another and seing it cannot be called Omission it must be Intromission 2ly Though Command or Warrand is ordinarly Probable by Writ or Oath Yet there are casus excepti as whatsoever is done for any Party in his presence is by all Lawyers said to be ex mandato inde oritur actio mandati non negotiorum gestorum so that the presence or tollerance of a person not only having Power but being oblidged for Diligence must much more infer his Power or Warrand And albeit he was not alwayes present yet the Deeds being publick and near the place of his abode it is equivalent The Lords inclined not to sustain the first member both in respect of the Act of Indemnity which bears in it self to be most amply extended and in respect that the Pursuer had no Right to the Personal Obligation or Diligence but as to the second member the Lords were more clear as to what was done in the Defenders Fathers presence but in respect it was more amply proponed The Lords before answer ordained Witnesses to be Examined by the Pursuer whether or not the Woods were publickly cutted and whether or not Lambertoun was at any time there present and apply'd any thereof to his own use and Witnesses also for the Defender to be Examined whethâ—r a part was cut Clandestinly and other parts by persons having no relation to Lambertoun and to whom he used any Interruption Eodem die THis day there being a Query formerly given by the Lord Thesaurer whether or not there should be a Processe of Forfaulture intented against these who rose in the late Rebellion before the Justice General so that the Justice might proceed against them though absent by putting the Dittay to the Tryal of an Assyze and taking Witnesses thereupon and upon Probation to proceed to the Sentence of Forfaulture or whether Probation in absence could not be admitted but before the Parliament There were Reasons given with the Query for the affirmative viz. That there was a special Statute for Forfaulture of Persons after their death in which case they were absent multo magis when they were living and contumacious 2ly Because by the Civil Law albeit Probation especially in Criminals cannot proceed unlesse the Defender be present Yet the chief Criminal Doctors except the case of lese majesty as Clarus Farenatius and Bartolus 3ly That the Parliament proceeds to the Forfaulture in absence not by their Legislative Authority but as a Judicature and what is just by them it is just also by the Justice The Lords demured long to give their Answer upon thir Const â—erations that by Act of Parliament it is Statuted that Probation shall be only led in presence of the Party and that there had never
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
a verbal Promise not in Writ it can be no more effectual than if it had been a verbal Tack which is only effectual for a year and thereafter the Setter may resile It was answered that here there is a Tack by the Husband for several years and the Wifes promise never to quarrel it needs no Solemnity in Writ but is valid as pactum de non petendo or de non repugnando The Lords found the Wifes Promise effectual and that she might not resile during the years of the Tack Lady Lucia Hamiltoun contra The Lands of Dunlap and Pitcon and the Creditors of Hay of Montcastle Ianuary 15. 1670. LAdy Lucia Hamiltoun being assigned to a Bond of 4400. merks grantted by George Hay of Montcastle to the Earl of Abercorn she Inhibits the said George and Denunces and Apprizes his Lands of Birklands and others and thereupon pursues Reduction against Dunlap and Pitcon and certain other Creditors in favours of whom there is a Disposition granted of the saids Lands by George Hay and insâ—sts on this Reason that albeit the Disposition bear to be for sums of Money and Causes onerous yet by a Clause therein it is expresly declared that it is granted to Dunlap and Pitcon for satisfying of the Debts due to them and to the effect they may sell the Lands for payment and satisfaction of the said Iohn Hay his other Creditors under-written for the sums after-specified after which words there was left a large blank which by ocular inspection is now filled up with another hand than he who Wrote the Body of the Disposition and which Article so filled up is in the same case as if it had been set upon the Margent and subscribed or as if it had been in a several Writ wanting Witnesses and cannot be holden to be of the same date of the Disposition but must be presumed to have been filled up after the Pursuers Inhibition and after she had Denunced and Apprized the Lands and therefore as to these Creditors so filled up their Rights which are granted by Dunlap and Pitâ—on the intrusted Persons long after the Pursuers Inhibition and Appryzing the same ought to be Reduced It was alleadged for the Creditors Defenders that the reason as it is qualified is no ways Relevant against them First Because the Disposition granted to Dunlap and Pitcon being of the whole Lands and they Infest accordingly being long before the Pursuers Inhibition and Appryzing and the said Disposition and Infeftment being to the Creditors behove albeit their Subaltern Rights from Dunlap and Pitcon be posterior nihil referi And whereas it is alleadged that their Names and Sums are filled up in the blank after the Inhibition and Appryzing with another hand and so must be presumed of another date It is answered that the Subscription at the Foot and Body of a Writ did necessarly infer that the whole blanks were then filled up unless the contrary be proven neither uses the Names of fillers up of blanks to be exprest and it cannot be presumed that any man in prudence would subscribe a blank Writ till the blanks were first filled up 2dly Though it could be proven that the blank was filled up after the Inhibition yet the general Terms of the Clause being insert a principio with the same hand viz. for satisfaction of the said George his Creditors it is sufficient although the particulars were insert after 3dly It is offered to be proven if need beis by the Oaths of Dunlap Pitcon and the Witnesses insert that before the subscribing of this Disposition thir Creditors filled up were particularly commâ—ned on to be filled up and no other The Pursuer answered that there being here pregnant Evidences of Fraud by interposing intrusted persons and preferring of some Creditors to others by the Debitor who was Insolvent and had no more Estate in that case the filling up of the blanks must be presumed fraudulent and posterior unless the Creditors prove it was trulyâ— filled up before the Inhibition otherwise it opens a Door to all Insolvent Persons in this manner to exclude any of their Creditors from payment and to have such Clauses ambulatory at their pleasure Neither doth the general part of the Clause suffice unless it had been in favours of the Disponers Creditors generally or indefinitly which would have comprehended the Pursuer but it being only of the Creditors under-written if these were not under-written till after the Inhibition they have no place And as for any verbal Communing or Agreement it cannot be effectual until it be redacted into Write which was not till after the Inhibition The Lords found that the blank being filled up with another hand and so substantial a Clause and the Writer not being exprest at the foot that it was to be presumed to be posterior to the Inhibition unless the Creditors prove by the Witnesses insert or others above exception that it was truly insert before the Inhibition and Apprizing wherein they would not admit the Oaths of the Persons intrusted and they had no respect to the alleadgeance that it was Communed and Agreed upon before the Subscription Doctor Balfour and his Spouse contra Mr. William Wood. Ianuary 18. 1670. UMquhil Mr. Iames Wood having been Tutor to his Wifes Daughter she being now Married to Doctor Balfour they pursue Mr. William Wood as Representing his Father for a Tutor accompt in which Accompt the Auditors reported these Points 1. The Pursuer insisted for the whole sums bearing Annualrent whereof no part belongs to the Wife as Relict she being excluded by the Act of Parliament The Defender answered that he opponed the Testament and Confirmation unreduced whereby there is a Tripartite Division of the whole Sums and the Relict has one Third which belonged to the Defunct Tutor her Husband jure mariti The Lords Repelled this alleadgeance and found that the Errour of the Confirmation was Corrigible without Reduction 2. The Defender alleadged that he was not comptable for the Annualrent of one of the Sums acclaimed because by the Bond it was provided in Liferent to the Relict whereto his Father had right jure mariti It was answered that the Tutor had given several Discharges of that Annualrent as Tutor and not as Husband and so had Homologat and acknowledged the Pupils right to the Annualrent It was answered that the Discharge was so granted by errour and mistake falsa designatio non obest ubi constat dere and offered to prove by the Bond that the Wife was Liferenter Which the Lords found Relevant Andrew Hadden contra Nicol Campbel Ianuary 25. 1670. ANdrew Hadden having Charged Nicol Campbel upon a Bond Subscribed by him as Cautioner for Samuel Meikle Gold-smith Nicol Campbel Suspends and raises Reduction on this Ground that he being an illiterate man and could not subscribe he was induced to be Cautioner for Samuel Meikle but on these express Terms that he should only be Cautioner for 1200. merks and accordingly he gave order
to the two Nottars to subscribe for him as Cautioner for 1200. merks The said Andrew Hadden the Creditor being then present at the Warrand and Subscription and yet a far greater Sum is filled up in the Bond which he offers to prove by the two Nottars the Witnesses insert and the Communers The Charger answered that he oppones his Bond being a clear liquid Bond in Writ which cannot be taken away by Witnesses The Suspender answered that albeit regularly Writ cannot be taken away by Witnesses yet Fraud or Circumvention or the Terms of Agreement and Communing in Contracts are always probable by the Oaths of the Communers Writer and the Witnesses insert The Lords would not receive the Reason to be proven in the ordinar way by Witnesses but ex officio ordained the Communers Nottars and Witnesses to be Examined that they might consider the clearness and pregnancy of their Testimonies whether this Writ was Read to the Suspender when he gave Warrand to Subscribe and what was Read for the Sum and on what Terms he gave Warrand to Subscribe Mr. Iohn Mcqueen contra Marquess of Douglass and Mr. Peter Pearson January 26. 1670. MR. Iohn Mcqueen having been Minister at Carmichael and Trainsported to Edinburgh he continued to serve the Cure at Carmichael till March 1669 and pursues the Marquess for the half years Stipend 1669. Compearance is made for Mr. Peter Pearson his Successor who alleadged that he is presented in Ianuary to the whole Stipend 1669. and thereby has Right and Mcqueen was Transported before Ianuary 1669. and though he continued to Preach till February or March yet being Transported he was no more Minister and did not Preach till the compleat Sowing or Whitsonday which is the legal Term for half a years Stipend of Transported Ministers It was answered for Mr. Mcqueen that Pearson not being Admitted Minister till August 1669. can have no right to a Term anterior and the Patrons Presentation can give him no right because the Patron has now no power of the vaccand Stipend The Lords preferred Mcqueen seing nothing was alleadged for the Collector of the Vaccand Stipends who it is like might have excluded both for at Whitsonday neither of them was in officio or beneficio Relict of Mr. Patrick Sheâ—ls contra Parochioners of West-Calder Eodem die MR. Patrick Shâ—ils having been Minister of West-Calder he was Suspended by the Synod and Bishop for not coming to the Presbyteries and Synods and the Act Suspended him ab officio and bear that if he did not come to the next Synod they would proceed to Depose him yet he was not Deposed but continued three years in the Possession of the Manse Gleib and Stipend his Wife now pursues for an Ann the next Intrant being admitted within three Moneths after Mr. Patricks Death alleadges she could have no Ann because Mr. Patrick was Suspended ab officio beneficiâ— and produces an Act of the Synod bearing so much and the Relict produces that same Act Extracted and Subscribed by umquhil Mr. George Hay who was Clerk at the time and bears only Suspension ab officio and the Intrants Act is Extracted by the present subsequent Clerk and bears ab officio beneficio The Relict alleadged that the Act produced by her was the only Act intimate to Mr. Patrick and which is Subscribed by the Clerk who was Clerk to the principal Act it self and accordingly Mr. Patrick was in bona fide and did possesse three years after The Lords adhered to that Act and found the Ann due and ordained the other Act to be keeped in retentis that it might be compared with the Register that he might be Cenâ—ured if he Extracted it wrong Lady Towie contra Captain Barclay Eodem die THe Lady Towie insisted in the improbation of a Disposition alleadged granted by the Tutor of Towie whose Estate was provided to Heirs-male but he had Disponed his Estate to the Pursuer his Daughter upon which no Infeftment had followed in his Life And also for improving of a Bond of a hundreth and three thousand pound alleadged granted by the Deceast Laird of Towie both granted in favours of Captain William Barclay In which Improbation because the Writs were not produced a Decreet of Certification holding them as false and feinzied and declaring them to make no Faith was Pronounced and Extracted and thereafter the Pursuer having desired that Alexander Steil and Iohn Ross Witnesses insert in the Disposition and Alexander Ferguson Writer and Witnesses in the Disposition and Witnesse in the Bond should be Examined lest by their Death the means of Improbation should fail in case the Writs were hereafter produced Whereupon the Lords Examined the Witnesses Steil and Râ—ss by their Depositions acknowledged that they being Servants to Captain Barclay he had induced them to Subscribe as Witnesses to a Writ which he had folded up and did not Read to them but they saw that there was no Name as a Subscription thereto at that time but the Captain told them that he would get the Tutor of Towies Subscription thereto and that he had thereafter dealt with them to bide by the Writ as a true Writ and that albeit it bear date at the Barns of Towie the day after the Laird died yet that it was truly Subscribed at the Captains House of Achridie about a Month thereafter Ferguson did Depone that he had Written over the said Disposition and that it was Subscribed at Achridie about a Moneth after Towie died and that he had insert himself Witness therein but had not Subscribed as Witness and that he was insert and Subscribing Witnesse in the said Bond to which he Forged and set to the hand of the Deceast Laird of Towâ—e at the desire of the Captain whose Pupil he had been The other Witness in the Bond was Richard Barclay who appeared not upon the foresaid Disposition Captain Barclay had made Resignation before the Lords of Exchequer and the same had been produced by him and made use of in Processes before the Lords as appeared by the Subscribed Minute by Mr. Alexander Birnie his Advocat acknowledging the getting up of that Disposition from the Clerk which he had produced for Captain Barclays interest and which he had delivered to the Captain immediatly as he had received the same from the Clerk Captain Barclay's Goodson Arnage was also Examined who Depoâ—ed that he had received a Message from the Captain to deal with the Witnesses to come over to Edinburgh and bide by the Writs Captain Barclay himself was also Examined upon Oath and Confronted with the Witnesses but he denyed all the foresaid Points in their Testimonies and Deponed that the said William Steil being his Servant had run away from him and carryed away the said Disposition and Bond and had gone over to the Lady Towie and conspired with her for his destruction The Tutor also being Examined upon Oath acknowledged he had subscribed several Dispositions of the Estate of Towie in favours of