in favorem commercii Goods belonging to Rebels may either be Disponed and given by themselves in payment of their Debt or poinded or otherways affected before Declarator and Diligence done by the Donator to affect the same Grana crescentia WHat is the reason for the astriction of Grana crescentia Answer Feuers are in effect Coloni and perpetual Tacksmen And they ought not to be in better case than Tennants whose Grana crescentia were upon the matter thirled the Food and Expences of Labouring being deduced it is thought the Tennent will have no more than will entertain him Great Seal A Gift of the Estate belonging to Bastards or Forefaulted persons whereupon there was no Infeftment being granted under the Great Seal Quaeritur will it be valid Ratio Dubitandi The ordinary way of passing such Gifts is under the Privy Seal H. Heirs A Child being served Heir to his Mother and thereafter the Childs Father being served Heir to the Child Quaeritur if he can be said to be Heir of Line to his own Wife and ought to be discust before other Heirs A Woman being Married to a Bastard and having a Child Quaeritur as the Child will succeed to the Mother whether the Child having no other Heirs his Father being a Bastard so that he cannot have any Cognati upon the Fathers side will his Mother be Heir to him Ratio Dubitandi That by the Common Law the Mother does succeed and as the Child does succeed Ratione Cognationis and Relation to his Mother it seems that for the same reason she should succeed to him the Relation being mutual Quaeritur If a Son of a former Marriage having Right to succeed by Substitution in the case where the Father provided Lands to the Son of a second Marriage and the Heirs of his Body Whilks FailÈieing to the Fathers other Heirs and Assigneys for implement of his Contract of Marriage There being no other Children of the second Marriage must he be Heir to his Father the substitution being as said is in favours of the Fathers Heirs Ratio Dubitandi That in many cases the word Heir to another person than the person De cujus successione agitur is to be understood haeres habitu vel potentiâ non actu As if upon considerations a Brother should pass by his Brother of purpose and FailÈieing his own Heirs should substitute the Heirs of his Brothers Body But in this case it would seem by the Obligement of the said Contract of Marriage and the said right he has intended that he should be represented himself FailÈieing the Heirs of his Marriage Vide the tenth and eleventh Questions in the Title Successor titulo Lucrativo Litera S. If that should be the Construction Quaeritur Quid Juris If the Son of the second Marriage should decease the Father living Seing the Son of a former Marriage cannot be served Heir to his Father Cogitandum Lands being entailed to diverse persons substitute and the Heirs of their Bodies whilk FailÈieing to the other Heirs of TailÈie successivé Quaeritur If one of the said Heirs of TailÈie be Forefaulted before the Death of the person in Fee leaving descendents of his own Body whether will the next Heir of TailÈie succeed Ratio Dubitandi Because the next Heir who would succeed FailÈieing the Forefaulted person and the Heirs of his Body cannot be said to be proximus seing the Children of the Traitor are nearer And though they be nulli and mortui civiliter they are not naturaliter nulli So that they being incapable and the others not having jus sanguinis it may appear quod nullius est pertinet ad Regem It is thought that the nearest of Kin should exclude the Fisk Seing qui sunt nulli they are not to be considered as to any effect and especially in that which is odious and exclusive And it is hard that the Estate should be Forefaulted by the Crime of a person who had never Right to it Behaving as Heirs QVae Ratio That the owning a Title of Honour and sitting in Parliament doth not import Behaving as Heir and yet the owning and intrometting with a Sword or Armour or any thing else will import Gestionem Answer That Creditors being to be satisfied out of the Goods and Estate belonging to a Defunct Debitor If the Appearand Heir doth meddle with any part of the samen Eo ipso adit passive quia miscet se rei which should be Lyable to the Executors Execution But a Title of Honour is not such an Interest as could be any way Lyable to the Creditor and the Appearand Heir in owning the same non libat haereditatem Quaeritur If a Ratification by any Appearand Heir of a Right granted by the person he was to succeed to being yet on Life will import Gestionem Ratio Dubitandi That he could not be Heir nor Gerere during the Defuncts Lifetime And on the other part the ratification is granted because he is Appearand Heir and might question the Right And as one may be Lyable passive by accepting a Right in the Defuncts time whereby he is Successor titulo lucrativo so he may Behave by a Deed in the Defuncts time Heir of Conquest THere being three Brothers and the middle Brother having an Estate and deceasing after the decease of his Elder Brother who had diverse Sons and the Younger Brother being on Life Quaeritur Who will succeed to the middle Brother as Heir of Conquest Ratio Dubitandi 1mo The Younger Brother being Heir of Line and who would be Tutor to the Children of the middle Brother if he had any it may be doubted if there should be a representation in conquest the Heir of Conquest not being properly Heir 2do Conquest ascending gradatim whether would the Youngest or Eldest Son of the Elder Brother succeed as Heir of Conquest being both collateral to the Defunct Discussion of Heirs A Person having provided his Estate to his Daughter with power to Dispone and Redeem is obliged that if he should make use of that power in prejudice of his Daughter he and his Heirs Male and Successors in that Estate and Dignity should be obliged to pay a certain great Sum of Money at the first term after his Decease Quaeritur whether his other Heirs or Executors and not only the Heir Male will be Lyable to pay the said Sum at the least in subsidium The Heir Male being first discust Lauderdale and Lady Yester Quaeritur Quo ordine A Successor Titulo Lucrativo should be Discust Answer It is thought that he should be discust before the Heir of TailÈie being in effect a general Heir Unless Lands be Disponed to an Appearand Heir of TailÈie in which case he should be considered as an Heir of TailÈie When the order of Discussion is Renounced If the Heirs of TailÈie or Provision may have recourse for their relief against the Heir general who by Law is first Lyable to the Debts Albeit as to Creditors that order be
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
cross with certification pro confesso seing no person could be holden as confest who is not personally apprehended Mr. Thomas Hay Clerk D. 244. Duke of Monmouth contra Earl of Tweeddale eod die THere being a Transaction betwixt the Duke and Dutchess of Monmouth and the Earl of Tweeddale whereupon a Discharge was granted by the said Duke and Dutchess to the said Earl with consent of their Curators which was also superscribed by his Majesty taking burden for the Duke and Dutchess with an obligement that they should ratify after Majority The said Duke and his Lady pursued a Reduction of the said Discharge upon a reason of Minority and Lesion It was Alledged That all Parties haveing Interest were not called viz. The Officers of State for His Majesties Interest seing His Majesty was so much concerned that if any thing were evicted from the Defender His Majesty would be Lyable for the same The Lords Repelled the Defence Without prejudice to His Majesties Advocat to appear for his interest if he thought fit Stathurd Reporter Gibson Clerk D. 245. Irving contra Caruther 6. February 1675. THE Summonds being referred to the Defenders Oath who having declared that as to what was referred to his Oath he could not remember nor be positive It was debated amongst the Lords whether the Oath did prove or not Or if the Defender should be holden as Confest In respect he was to declare de facto proprio recenti and in such a case the pretence of non memini is neither excuseable nor relevant And so it was Found by the Lords tho some were of the Opinion that a person compearing and declareing upon Oath that to his knowledge he did not remember could not holden as confest seing he cannot be said to be contumacious and to want Memory is not a fault And after a party has declared it is only to be considered whether the Oath proves or not Mr. John Hay Clerk D. 246. Burnet contra McClellane eod die A Father being pursued as Behaving himself as Heir to his Son and Litiscontestation being made and Witnesses adduced the time of the Adviseing It was Alledged That the Father could not represent his Son as behaving because the Defunct had a Brother who was produced and at the Barr Whereto It was Answered That in hoc statu the Defence was not receivable and it could not be said to be noviter veniens seing the Father could not be ignorant that he had another Son The Lords in respect of the State of the Process would not receive the Defence tho verified instanter unless the Son would suscipere judicium and be content that the Process should proceed as against him which appears to be hard seing that which was to be proven was not only that the Defender intrometted but that he was appearand Heir and in casu notorio no probation was to be respected to the contrary and tho the Father could not but know that he had a Son yet he might be ignorant that his Son would be preferred to himself as to the Succession of his own Son and in damno vitando ignorantia Juris is excusable Mr. J. Hay Clerk D. 247. _____ contra Captain Martine and others 9. February 1675. A Ship being taken by a Caper and being found by a Decreet of the Admiral to be a Prize Thereafter upon a Decreet of the Lords reductive of that of the Admiral being found to be a free Ship the Stranger did urge payment against the Captain and the Owners of the value And It was Alledged That the Decreet of the Lords Ordaining Restitution was against them as correi debendi and not in solidum and that they are only lyable for their own parts Whereunto It was Answered That though it was found That the Captain had probable Reasons for bringing up the said Ship yet upon the matter the Stranger was wronged by the taking of his Ship and in casu delicti by spuilÈie or wrongous intromission or otherways Decreets against the Persons therein contained are construed to be in solidum and the Stranger cannot know what the respective Interests and Parts of the Owners are and ought not distrahi and to be put to Process against every one of them for declaring of their Parts The Lords Found That they were lyable in solidum Reserving their Debate and Relief amongst themselves as to their several Interests and Proportions Lord Forret Reporter Gibson Clerk D. 248. Burd contra Reid eod die THE Lords having formerly Found That the Cedents of Personal Bonds are lyable only to warrand debitorem esse but not esse locupletem It was pretended That there being a Question concerning Warrandice of a Right of Annualrent out of Land the same should be warranded no other way But The Lords Found That the Warrandice of Lands or of such real Rights upon or out of Land are absolute unless they be expresly limited and qualified by their Right Hamilton Clerk D. 249. Vetch contra the Creditors of James Ker and Peter Pallat. eod die SIR Robert Stewart in Ireland and his Son being Debitors by Bond in the Sum of 800. lib. starl to the deceast James Sanderson which Bond being conceived in the Form of English Bonds did not bear Annualrent The said James did assign the said Bond in Favours of Ronald Graham in trust and to his own behoof upon a Back-bond and thereafter did assign the said Back-bond in favours of James Ker and Robert Broun Merchants as to two Parts to the said Ker and the third part to Broun Sir George Maxuel of Pollock being Trustee and acting in name of the said Stewarts did grant a Bond to the said Ker and Broun making mention of the said Bond granted by the Stewarts and of the Assignation made by the said James Sanderson to the said Broun and Ker and that after Compt and Reckoning there was only resting of the said Sum 300. lib. sterl which the said Sir George in name of the said Stewarts is obliged to pay within three Moneths after that Stewarts Bond should be delivered to him with an Assignation or Discharge The said James Ker being deceased his Executors did intent Action against the said Sir George Maxuel for his part of the said Sum viz. 200. lib. In this Process William Vetoh did compear for his Interest and did alledge that the Sum in question due by Sir George Maxuel did belong to him having fallen under the Rebellion of the said James Sanderson and the Gift of his Escheat first Gifted to David Rodger fra whom the said William had right and thereafter to the said William himself and tho the said Bond granted by Sir George Maxuel was granted to the said Ker and Broun yet it was granted for the same Sums that were due by the said Stewarts to the said Sanderson as appears by the Bond granted by the said Sir George Maxuel so that the foresaid Sum due to Sanderson and the Bond for the same having as said is fallen
when he was in liege poustie and had power as Dominus to dispose of his Goods or to grant Bonds which might affect the same The Relict could have no Legitime but of the free Gear the said Bond and other Debts being satisfied Some of the Lords were of the Opinion that the Bond should affect the haill Goods But others thought that it ought to affect only the Defuncts part seing there is a Commumon betwixt Husband and Wife and albeit the Husband is said to be Dominus and has full Administration of the same so that he may dispose thereof and grant Bonds for Onerous Causes yet he cannot in prejudice of the Communion and the Wifes Interest foresaid dissipate and give away the same by fraudulent Donations of purpose to prejudge either the Relict or the Children of their Legitime But this point was thought fit to be heard and debated in praesentia D. 303. Forbes of Colloden contra Ross and others 26. November 1675. A Decreet at the instance of Forbes of Colloden against Robert Ross and others before the Commissar of Ross being questioned upon that Ground that the said Commissar had committed Iniquity in Repelling Relevant Declinatures whereof one was upon the account of his Relation to the Pursuer being the Commissars Uncle And an other was upon account of the nature of the Action Alledged not to be consistorial and the subject of the Process tho it had being proper otherwayes yet being far above the Sum of 200 Merks was such as by the Regulation the Commissar could not be Judge in And likewayes in resâ—ect that the Commissar did assume to himself a Power to modify a great Sum extending to above 6000. lib. for the Charges the Pursuer had been at in proâ—ecuting a Plea by warrand of the Defenders and wherein he and they were concerned And the said Modification was upon no other Probation but the Pursuers Oath and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative Some of the Lords were of the Opinion That the Commissar notwithstanding of the Relation foresaid could not be declined seing there is no statute that Judges may be declined upon that account And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session There is no other Relation that can be a Ground of Declinator but where the Judge is related to either of the Parties as Father Brother or Son And yet others were of the Opinion that a Nevoy being of so near Relation may and ought to be declined In respect by the Common Law persons of that Relation are most suspect and cannot be Judges And by the said Law a Judge may be declined upon any Ground that may decline a Witness and there is more reason to decline Judges than Witnesses seing there may be penury of Witnesses and they may be so necessary tho related to the Parties that others cannot be Found And the said Act of Parliament as all Acts of Parliament especially such as are correctory Juris communis ought to be taken strictly and cannot militate but in the case therinintended and exprest And the said Act is upon special considerations in Relation to the Lords of Session and particularly of the Eminent Integrity that is presumed and ought to be in the Supreme Judicatory The Lords without entering upon the Debate of the said other points turned the Dcereet in a Lybel Forret Reporter Clerk D. 304. Anderson of Dowhill contra Lowes 27. November 1675. William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers Daughter certain Aikers near Glasgow which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill But John Lowes having thereafter Marryed the said William Norvels Relict Elisabeth Gibson and having upon an Assignation to a Debt of the said William Gibson adjudged the said Williams Right from his Appearand Heir And having pursued an Improbation and Reduction of Dowhills Right and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel Dowhill was forced to pursue forproving the Tenor of the said Disposition which was out of the way and which he pretended to have been in the Hands of the said Elizabeth Gibson and to have been abstracted by the said John Lowes her second Husband intending to patch up the Right foresaid And these Adminicles bein Lybelled viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow for Exhibition of that Disposition the said Elizabeth for obtaining a Suspension of the Decreet of Exhibition recovered against her did consign in the hands of Henry Hope the said Disposition and other Writes and that thereafter the said Thomas Norvel upon the said Disposition did obtain a Decreet cognitionis causa before the Baillies of Glasgow In which the said Disposition is mentioned as produced And thereafter the said Thomas did also obtain an Adjudication of the said Aikers wherein also the same was produced And that there is an attested double of the said Disposition which is written by James Galbraith Agent and attested by two famous Notars The Lords admitted the Summonds to Probation And diverse Witnesses being Examined and in special the said James Galbraith and these who were Servants to the Clerk of the Court of Glasgow the time of the obtaining of the said Decreets Cognitionis causa Adjudication and others After much debate before advising in praesentia and amongst the Lords themselves Some of the Lords were of Opinion that pursuites of the nature foresaid being of so great importance and tending to make up a Right to Lands which may be of great value The Adminicles ought to be in Write and most pregnant and that in this case tho there might be ground of presumption yet it cannot be said that there are clear Adminicles in Write In sua far as the attested double cannot be considered as an Authentick Write and it wants a date And as to the Decreet of Adjudication tho it mention the production of the Letters of Disposition yet it appears by the Depositions of the Witnesses and it was granted at the Barr that the principal Disposition was not produced but only an attested Double and needed not to be produced the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication And as to the Decreet Cognitionis causa that it is not a sufficient Adminicle seing both it and the Decreet of Adjudication bearing the Production in the same Terms there might have been the same mistake in the Decreet Cognitionis causa that is confest to have been in the Adjudication viz. That the Attested double being only produced yet the Production is made to bear the Disposition and there being so short a time
sequitur invalidam esse superius enim dictum est in contractibus obligationibus de successione Talliata de rebus immobilibus praediis nos quotidie disponere eas autem donationes esse mortis causa patet ex praedicta Definitione mortis causa donationis quod omnes de successione contractus mortis contemplatione plerumque non sine mortis commemoratione fiant effectum post mortem sortiantur in iis ambulatoria sit voluntas nisi accedat pactum de non revocando Ad Tertium Respondetur falsam esse Propositionem nec enim cessante causâ impulsiva cessat effectus nec qui periculo imminente mortalitatis admonitus Testamentum condidit si periculum effugerit aut eluctatus fuerit eo minus in voluntate eadem perseverasse censebitur testatus discedit nisi revocasse constiterit Ad Quartum Respondetur Dispositionem reditu eveniente haud nullam aut irritam esse sed revocabilem id ex eo demonstrari Quod sibi soli tantummodo reservarit si domum rediret potestatem revocandi si enim inanis caduca fieret Donatio in casu reditus quorsum ista potestas sibi soli reservata revocandi donationem quoad omnes ipso conditionis eventu extinctam revocatam Ad Quintum Sextum Respondetur Negatur instrumentum post Donatoris reditum penes eum esse penitus supervacuum disceptare an penes eum fuerit cum nunc penes actorem sit sibi a donatore traditum nec necesse est docere quomodo quando ad se pervenerit Senatus Interlocutus est Donationem istam Testamenti naturam haud sapere sed validam efficacem esse Sed si constiterit probatum fuerit penes donantem instrumentum post ejus reditum fuisse tuno revocatum irritum esse An autem eo quod penes actorem nunc sit a revocatione discessum sit reviviscat Donatio interloqui sustinuit ulterius inquirendum censuit quando quomodo ad actorem pervenerit D. 124. Whitehead contra Straiton 14. Novemb. 1667. RObert Whitehead of Park pursued John Straiton Tacksman of the Park of Holy-rood-house for the price of a Horse put in the said Park to be pastured for 4. shil per night which after search cannot be found It was Alledged That by a Placad affixed upon the Gate of the Park It was intimated that the Keeper of the Park would not be answerable for any Horses put therein although they should be stolen or break their Neck or any other Mischief or Hazard should overtake them It was Replyed That by the Law Nautae Caupones c. the Keeper ex conducto is lyable unless it were alledged That it had been expresly agreed that he should not be lyable or at the least that it was known to the Pursuer that such a Placad was affixed when he put in his Horse The Lords Before answer ordained the Reporter to enquire and hear the parties upon the terms of the Agreement when the horse was put in whether it was told or known to the pursuer that the keeper would not be answerable Castlehill Reporter D. 105. Gardiner contra Colvil 16. Novemb. 1667. IN an action Gardiner contra Colvil the pursuer being ejected during her Husbands absence out of the countrey and when it was supposed he was dead The Lords sustained the pursuite Though the time of the adviseing the probation It was offered to be proven that he was living and did declare that albeit the Husband were at the Barr they would give the Wife the benefite of Juramentum in litem in respect of the wrong done by the Defender and the particulars and quantities could not otherwise be proven Actor Longformacus alter Wallace Castlehill Reporter D. 106. Trotters contra Lundy 20. Novemb. 1667. THE Children of George Trotter in Fogorig being confirmed Executors to their Sister Isobel Trotter pursued James Lundie Cautioner in a Bond for James Trotter of the East-end of Fogo for the Sum thereinconteined It was Alledged that the said James being Heir to his Grand-father Alexander Trotter in the East-end of Fogo and the said George Son to the said Alexander and Executor to him they did transact together that the Movables belonging to the said George as Executor should remain with the Heir and the said James and the Defender as Cautioner did for the cause foresaid grant the said Bond blank in the Creditors name wherein the said George filled up the name of John Trotter in Chester his Brother and procured from him an Assignation for the said Isobel his Daughter And that thereafter upon a Submission betwixt the said George and Alexander Trotter Son to the said James granter and principal Debitor in the said Bond The Arbiters ordained the said George to give back to the said Alexander the said Bond and Assignation with a Discharge thereof and therefore the said Isobel being in familia paterna and the said Bond and Assignation being taken and procured as said is by the said George the Father in favours of the Daughter who hath no visible Estate or means to acquire any such Right he was still master of the same And it being ordained to be Discharged as said is the said Debt is Extinct It was Answered that the Bond being filled up and Registrat in the name of the said John Trotter and the samen being Assigned and the Assignation in favours of the said Isobel intimat and after her decease her Executors having confirmed the said Debt all before the said Submission her Father could not by the Submission or any other deed of his Evacuat the said Right Established in the person of the said Isobel and her Executors And as to the Practique betwixt Monimusk and Pittarro whereupon the Defenders alledge it doth not quadrate to the Bond in question it being never delivered but depositat in the Uncles hand Mother Brother to the Child and in the same case It was Found That the Father could not retract a reall Right made in favours of his Child and Heir And here there is Eadem Ratio The Lords Found That the Father being Master of a Bond or Right whereupon nothing followed being granted by himself may throw it in the fire and may consequently Discharge it But the said Right being made publick and compleated by the delivery and which is equivalent by some publick deed by Infeftment if it be Heretable or by Assignation intimated or confirmed Testament if it be Movable he could not thereafter Retreat or prejudge the same And repelled the Defence in Respect of the Answer Hackertoun Lord Reporter Mr Thomas Hay Clerk D. 107. Pollock contra Pollock eod die JOhn Pollock having granted a Bond of 5000 Merks to James his second Son of the first Mariage The said James intented and pursued for payment both Robert eldest Son of the same Marriage Heir of Line and John eldest Son of the second Marriage and Heir of
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his