Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
Representing his Father pursues Aitoun of Inchderne as Representing his Father for the Sum contained in the Contract who alleadged Absolvitor because the Pursuers and his Fathers Right flowing from the Marriage and it Dissolving within year and day his Right ceaseth and farther alleadged that all things were now in the same condition as before the Marriage so that the Contract of Marriage was void and the Discharge granted in the first Security was void and the first Security being Heretable belongs to Anna's Executors from whom the Defender has Right by Assignation The Pursuer answered that the Defense is no wayes Relevant because though the Marriage Dissolved within year and day and that thereby the Tocher and Jointure became void yet what was Acted in Relation to Mr. Robert Aitoun who was a third Party viz. the Discharge and Renunciation of the first Security stands valid as to him for if the Lands burdened had been sold to any other that burden being once Discharged and Renunced could never affect them so that whatever is in a Contract Matrimonial Extrinsick and relating to third Parties is valid and the acknowledgment of the Money contained in the Contract is at least acceptilatio which extinguisheth the first Security in the same way as if real payment had been made in place of which payment standeth the new Security granted to the Husband so that now there is neither Debitum nor Creditum betwixt Anna Aitoun and umquhil Mr. Robert Aitoun or their Representatives but by the Dissolution of the Marriage the Husband and his Heirs becomes lyable to pay the Tocher but not to the Wifes Heirs but to her Executors for the Tocher being payed or satisfied and the old Security taken away the Husbands obligement to pay is clearly moveable and so belongs to the Pursuer as Executor and universal Legator to his Wife and not to the Wifes Heirs or the Defender who has Right from them The Defender answered that the Tocher never having been uplifted but remaining in the same Debitors hands as before the Marriage omnia redeunt in pristinum statum and the Discharge granted to the Debitor in Contemplation of the Marriage is also void so that if the Husband had Died and the Wife Survived if she had pursued Mr. Robert Aitoun upon the first Security and if he had Defended upon the Discharge contained in the Contract of Marriage he would have been Excluded by this Reply that that Discharge being granted in Contemplation of the Marriage is now void by the Dissolution thereof within year and day especially seing the Debt yet remains in the Debitors hand 2dly The Defender alleadged that the Discharge though it were valide was not habilis modus to extinguish the first Security being a real Right 3dly That the new Security granted to the Husband being Heretable and the Husbands therein ceasing it accresceth to the Wife as if it had been granted to her and so can only belong to the Defender as having Right from her Heirs and not to the Pursuer as being her Executor The Pursuer answered that the first Security was totally extinct by Acceptilation and by the Discharge thereof granted to the Debitor in the Contract of Marriage and though the Wife had Survived and pursued the Debitor and he had excepted upon the Discharge her Reply upon the Dissolution of the Marriage would not have been Sustained to annul the Discharge because whatever might have been done if the Debitor could pretend no Damnage or Interest Yet where the Debitor had granted a new Security to the Husband which could never be taken away without the Discharge and Renunciation of the Husbands Heirs the Debitor could never be Decerned to pay the Wife so long as the Security to the Husband stood which Security could never accresce to the Wife at least could never so accresce as to make it an Heretable Security to the Wife but she could only have Right of Repetition against the Husband And the question being here concerning the changing of the condition of a Sum from Heretable to Moveable as a Requisition or Charge during the Marriage would have made the Sum Moveable multo magis an Innovation and Acceptilation by a Discharge and new Security And whereas it was alleadged that the Discharge was not habilis modus It was answered that this Sum not being secured by an Infeftment of Annualrent or Wodset but only by a Provision burdening another Infeftment of Property with the Sum there needed no Resignation but the Discharge and Renunciation is sufficient The Lords found the first Security to be wholly taken away by the Discharge contained in the Contract of Marriage which they found valid as being granted to a third Party notwithstanding of the Dissolution of the Marriage and therefore found it to belong to the Husband as having Right to the new Security and as Executor to his Wife and not to the Defender as having Right from the Heirs Mary Winrham contra Mr. Iames Eleis December 15. 1668. JAmes Murray of Deuchar having Married his Daughter to Iames Eleis of Stenopmilâ— leaves to the seven Sons of the Marriage beside the Heir 7000. Merks and the Portion of the Deceasing to accresce to the Surviving which Sum was uplifted by Iames Eleis who in his Testament nominats his eldest Son and Heir his Executor and universal Legator and ordains him to pay all his Debts out of the first end of his Moveables and then leaves 9000. Merks to Patrick his second Son in satisfaction of all that he might succeed to by the Decease of the Testator his Father Margaret Winrham Relict and Executrix Creditrix to her Husband obtained a Decreet before the Commissars against Mr. Iames Eleis who Suspends on this Reason that Patricks Legacy of 9000. Merks being in full satisfaction of all he could demand by his Fathers Death must be understood in Satisfaction of the said Legacy left by Iames Murray which being lifted by Iames Eleis the Testator and so becomes his Debt debitor non praesumitur donare 2dly The Commissars Decreet is most unjust in Decerning Annualrent where there was none due by Paction the Sum being but a Legacy which never bears Annualrent The Charger answered to the first that the Brokard debitor non praesumitur donare holds not in many cases especially in Provisions of Children by their Fathers who are obliged jure naturae ex pletate pateâ—na to provide them And in this Testament the Executor is appointed to pay all the Debts without any exception of this or any other and the Testator had a plentiful Estate it can no ways be thought that both the Legacy and this Sum in question was too great a Portion to his second Son as for the Annualrent the Father being Tutor and lawful Administrator to his Son ought to have imployed it profitably and no doubt did being a most provident man It was answered that the Son never having insisted for this Sum nor having ever demanded Annualrent during his
a real Right nor prevent the Diligence of other Creditors 2dly If they had a good interest to Reduce and thereupon to Apprize no offer could take away that interest but payment The Lords found the Creditors had sufficient Interest upon their Personal Bonds to insist upon the Reduction ex capite lecti but they found that a real Security given to Cowpers Creditors equivalent to an Apprizing and Infeftment was sufficient to exclude their Interest Monteith of Carâ—ubber contra Margaret Boyd December 2. 1669 UMquhil Mr. Robert Boyd of Kips dying Infeft in the Lands of Kips and Gourmyre and in a Miln and having left two Daughters Heirs portioners the younger having Married Monteith of Carrubber being dead her Son and Heir raised a Brief of Division against the eldest Sister whereupon Division was made in this manner viz. The Rent of the Miln being Rated at a 100. pound the Chalder being more than the Rent of the Land the whole Land was set on the one part and the Miln on the other and because the Mansion-House belonged to the eldest Sister the Land was Adjudged to her and the Miln Adjudged to the other and the superplus of the Rent of the Miln allowed in satisfaction of the youngest Sisters Interest in the House Carrubber raises Reduction of this Division upon these Reasons First That the Lands ought to have been divided in two shares and the House likewise having convenient Rooms and Lodgings for both Families in which they have Dwelt these 20. years and not to have Adjudged the Miln only to him stating the Victual being only Meal at a 100. pound the Chalder far above the just value and stating the Miln-Rent equivalent to the Land-Rent which is subject to many more Contingencies and Expenses in upholding the Miln and difficulties in recovering the Rent and in the common estimation is not accounted equivalent to Land Rent so that he is enormly les'd and offered a 1000 merks to Margaret the eldest Daughter to exchange shares albeit the Rent of either share be but about three Chalders of Victual The Defender answered that the Reasons of Reduction were no way Relevant because all Divisions ought to proceed as is most convenient for either Party and where least is left undividedâ— and the Division it self cannot have a precise Rule but is in arbitrio of the Inquest who were knowing Gentlemen of the Neighbourhead and upon Oath so that unless the Lesion were ultra dimidium justi valoris it cannot be recalled seing an Inquest has the irrecoverable determination of Life and Death which is of far greater moment than this and this Division proceeded upon Carrubbers own Process and the Inquest was called by himself And albeit it be true that if the Division could have been made by giving both a share of the Lands and a share of the Milns if there had been more Milns it might have been more equal but here if the Land had been Divided the Miln behoved to have remained for ever Common and so the Division not be compleat Likeas the Miln lies at a distance from the Land and near to Carrubbers own Land and is not a casual Rent arising from free Multures but has the whole Barrony of Torphichen astricted by Infeftment and the Defender is willing to give 2500. merks for each Chalder of the Miln Rent which is the ordinary rate of Land Rent and the reason why there was no Cavel or Lot was because the eldest Sister falling the Mansion House by Law she behoved to have the Land therewith The Lords Sustained the Reasons and Ordained a new Commission for a new Division here the Lords would not consider the Points severally whether the Mansion House ought to have been Adjudged to the eldest Sister and a Recompence to the second Or whether such a House being no Tower nor Fortalice but which would be comprehended as a Pertinent of the Land gave no preference so that Lots ought to have been cast upon the Division Or whether the House could be divided per contignaliones Or whether the Miln though it had been truly Rated could have been put to answer the whole Land Or that the Land behoved to be divided and the Miln remain common but only generally the Lords gave a new Commission for a new Division Weavers of Pearth contra Weavers at the Bridge-end of Pearth December 4. 1669. THE Weavers of Pearth having pursued the Weavers at the Bridge-end upon the 154. Act Par. 1592. prohibiting Trads-men in the Suburbs of Burghs to exercise their Trades whereof mention is made Iuly 21. 1669. The Defenders were then assoilzied Now the Pursuers further alleadge whereas it was then represented that that Act had never taken effect but was in desuetude They now produce a Decreet of the Lords at the instance of the Weavers of Edinburgh against the Weavers of the Suburbs compearing Decerning them to desist and cease from bringing any of their Work within the Liberties of Edinburgh and from coming within the same to receive Work and that upon the same Act of Parliament which cleares that the same is not in desuetude and it is founded upon a most just and necessar Ground viz. That Trads-men within Burgh pay Stent for their Trade which were impossible for them to do if the same Trads-men were permitted in the Suburbs who might work cheaper then they not being lyable to Stent The Lords Explained their former Interlocutor and declared conform to the foresaid Decreet of the Town of Edinburgh viz. That Weavers in Suburbs might serve any in the Landward but might not come within the Liberties of the Burgh for taking up the Work of the Burgesses in prejudice of the Free-men who were Free-men of the Burgh Iohn Iaffray contra Alexander Iaffray and Doctor Iaffray his Son Eodem die JOhn Iaffray late Provost of Aberdeen pursues a Declarator of the Escheat and Liferent of Alexander Iaffray his Brother Compearance is made for Doctor Iaffray Son to the Rebel who produced a prior Gift with general and special Declarator and alleadges no Declarator at the Pursuers instance upon this posterior Gift because the Right is fully Established in his Person by the prior Gift and Declarators The Pursuer answered First That the Doctors Gift is simulat to the Rebels behove and so accresced to the Pursuer which appears from these Evidences First That the Doctor is the Rebels own Son 2dly That it is retenta possessione the Doctor having suffered his Father to possess for many years 3dly It was offered to be proven per membra curiae of the Exchequer that the Gift was purchased by the Rebels Means and Moyen and severally it was offered to be proven by the Doctors and his Fathers Oath conjunctim that he had given a Back-bond declaring the Gift to be to his Fathers behove It was answered for the Doctor to the first that the Grounds of Simulation were no way Relevant for albeit he was the Rebels Son yet he had means of
Infants and that if Archibald should die Thomas would get all superceeded to give answer anent the Heretable Right of Succession until both Parties were Major and in the mean time allowed Thomas to Possesse the Profits of the Lands who had no Aliment nor Provision Kennedy contra Cunningham and Wallace Iuly 12. 1670. THere being an Apprizing of the Lands of Garleith belonging to Iohn Kennedy at the Instance of Edward Wallace the said Edward by his Back-bond declared that the Apprizing was to the behove of William Wallace of Burnbank his Brother and obliges him to denude himself thereof in his favours Thereafter the said Edward Assigns the Comprizing and Dispones the Lands to Adam Cunningham who stands Infeft and in a Debate for the Interest of this Apprizing It was alleadged that Edward Wallace the Apprizer having by his Back-bond declared that the Apprizing was to William his Brothers behove conform to his Back-bond produced the said William was satisfied by Payment or Intromission so that the Apprizing is extinct It was answered for Cunningham that the alleadgeance is not Relevant against him who stands Infeft as a singular Successor so that his real Right cannot be taken away by any Personal Back-bond granted by his Author whereby he was not denuded for though his Author had granted Assignation to the Apprizing if it had not been Intimat a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto for albeit satisfaction of an Apprizing by Intromission with the Mails and Duties be sufficient to extinguish even against a singular Successor though there was no Resignation made which the Lords had extended to any payment made by the Debitor yet this was never extended to any Personal Declaration of Trust or obligement to denude which cannot be valide against a singular Successor It was answered for Kennedy that Apprizings and Infeftments thereon do differ from other Infeftments in this that they require no Resignation or Re-seising to extinguish them but whatever may take away a Personal Right either by Intromission Payment or compensation will take them away even by exception and what is Relevant against the Author is Relevant against the singular Successor except as to the manner of Probation that it cannot be Proven by the Authors Oath but by Writ or Witnesses neither is there any odds as to this whether there be Infeftment on the Apprizing or not so then if Cunningham were but Assigney to the Decreet of Apprizing it would be Relevant against him that before his Assignation his Cedent had declared that the Apprizing was to the behove of another to whom the Debitor had made payment which Declaration being instructed by Writ anterior to the Assignation is valide against Cunningham the Assigney and whether he be Infeft on his Assignation and Disposition of the Apprizing or not as to this Point Law and Custom makes no difference neither doth the case quadrat with an Assignation unintimat compeating with a posterior Assignation intimat which might be preferred but if the Debitor made payment to the Assigney though he had not intimat it it would extinguish the Apprizing and no posterior Assignation though intimat would make the Debitor pay again and in this case there is a real Declaration of Trust which is most ordinar when Parties having small sums assign them all to one who Compryzeth for all and by several Back-bonds Declares that the Appryzing is to the behove of the several Creditors according to their sums who have alwayes rested therein and have sought no further and if this Back-bond were not sufficient against singular Successors the Appryzer might at any time thereafter Dispone and clearly exclude them The Lords found that the Back-bond was Relevant against singular Successors and that payment made to him to whose behove the appryzing was Deduced was sufficient against a singular Successor having right to the appryzing or Lands from the Appryzer after he granted his Back-bond The Daughters of Soutray contra The Eldest Daughter Iuly 13. 1670. THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter beginning in the Stile of a Testament and after a blank Disponing his Lands of Soutray and his whole Moveables to the said Eldest Daughter with the burden of ten thousand merks to be payed to the remanent Daughters The saids remanent Daughters pursue a Declarator of the nullity of the Writ First In so far as being a Testament it contains a Disposition of the Lands 2dly In so far as the Eldest Daughter is nominate Executrix and universal Legatrix because by ocular inspection that part of the Writ was blank and is filled up with another hand which is offered to be proven to have been done since the Defuncts Death so that the Executor and Legator not being filled up by the Defunct in his own time and these being the Essentials of the Testament wanting the whole Falls even as to the Disposition of the Moveables The Defender answered that the Testament was valide albeit the Name of the Legator and universal Executor were filled up after the Defuncts Death yet it is offered to be proven that the Defunct when he subscribed the Testament did nominat his Eldest Daughter as Executrix and Legatrix and gave warrand to the Nottar to fill up the Name which though he neglected then and has done it since it ought not to prejudge her It was answered that our Law allows of no Nuncupative Testaments or nominations of Executors of Legators unless the Testament be perfected in Writ and therefore if the Executor or Legator be not filled up by the Defunct the Testament is not perfeited in Writ albeit the Defunct has Subscribed the same as he might have done in a blank Paper and given warrand to the Nottar to fill up his Testament upon such Terms which could not subsist though the Nottar and Witnesses should astruct the same as not being done habili modo The Lords found the Testament null as to the nomination of the Executor and Legator and also as to the Lands but they found it valide as to the Disposition of the Moveables with the burden of the ten thousand merks and found that the want of the nomination of the Executor or universal Legator did not hinder but that the Defunct might in any way Dispone his Moveables in Testament or on Death-bed which would stand valide as a Legacy which by our Law might consist without nomination of Executors but would extend to that part of the Moveables only the Defunct might Legat. Anna Raith and Iohn Wauchop of Edmistoun contra Wolmet and Major Bigger Eodem die IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet Iames and Mr. Iames Raiths of Edmistoun and their Spouses whereby a Marriage was Contracted betwixt Iames Edmistoun Wolmets Son and Mr. Iames Raiths Eldest Daughter and in case of the Decease of either of these two the next Son and next Daughter to make
a perpetual Friendship In Contemplation of which Marriage the said Iames Raith and Mr. Iames Raith his Son were obliged to pay 10000. pounds of portion to Wolmet himself and to lend another Sum for Redeeming of a Wodset upon the Estate which being done Wolmet was obliged to Infeft his Son and to provide eight hundreth merks of Joynture to his good-Good-daughter Raiths Eldest Daughter Dies and the said Iames Edmistoun Wolmets Eldest Son Marries Raiths second Daughter but there was no Contract or consent of her Parents and they having lived seven years together James Died without Children and Raiths third Daughter is Married to John Wauchop Niddries Son and Raiths Estate provided to her whereupon they to liberate Raiths Heirs and Estate of the 10000. pounds contained in the Contract raised Declarator that the minute was null and void in two Grounds First Because there was no Marriage following by consent of the Parents conform to the Minute 2dly Because Raiths obligement to pay the Tocher was to Wolmet himself and for his mutual obligement of Infefting his Son and providing a Joynture which neither was nor can be done Major Bigger now standing in the full Right of Wolmets Estate and no Person to Represent Wolmet The Defenders alleadged absolvitor from the first Ground because there was a Marriage conform to the Minute and albeit Raith did not consent yet being obliged he had no just Ground to disassent And to the second Ground seing there was no Clause irritant in the Minute albeit the obligements therein were mutual Causes each of other it might be Declared that neither Party should be obliged to fulfil till the other fulfilled their part but could not annul the Minute The Lords found that seing Wolmet was in no capacity to perform his part that the Heirs and Estate of Raith were free of their part providing that the Pursuer who is Assigney to the Liferent Right of the said Iames Edmonstoun his Wife should Discharge the said Liferent and declare that it should never burden Wolmets Heirs or Estate Beation of Bandoch contra Ogilbie of Martoun Eodem die BEaiton of Bandoch having a Miln upon a Burn running by the Lands of Greendykes and Martoun the Tennents of these Lands did by Sheuchs and Casts divert the Water and therewith watered their Ground which thereafter returned to the Burn before it came to Bandochs Dam. Bandoch pursues a Declarator that he and his Predecessors and Authors having been in immemorial Possession of the Miln and having had the free use of the Burn until of late the Tennents of Greendyke and Martoun have diverted the same to water their Ground whereby so much thereof is drunk up by the Ground that there remains not Water sufficient for his Miln In this Process the Lords having before answer allowed Witnesses to be adduced on either part It was proven that Bandoch was in Possession of the Miln with the free use of the Burn these threescore years and that it was commonly known that he and his Predecessors had been in immemorial Possession thereof till the diversion It was also proven that the Tennents of Greendykes had been fourty years in use to water their Ground as now they do It was also proven that the Tennents of Martoun have been in use to water their Ground this 34 or 35. years whereupon it occurred to the Lords to consider whether the watering of the Ground being the most natural and ordinar effect of Burns and Waters the building of a Miln beneath could hinder that liberty or at least if 34. years Possession were not sufficient to continue the watering The Lords did not consider what effect the building of a Miln with a short possession of the Water free of diversion would hinder the Heretors from diverting the Water from watering their Ground but finding that the ancient and immemorial Possession of this Miln and full injoyment of the Water was as much proven as could be known to preceed the 34. years during which the diversions upon the Lands of Martoun was proven they found that the Miln and her priviledge being once so Constitute no less then 40. years peaceable Possession of diverting the Water for watering was sufficient that being the only legal Term and therefore allowed the Lands of Greendykes to continue the watering but discharged the Lands of Martoun to continue the same Sir Alexander Hume contra The Earl of Hume July 14. 1670. THe Right of the Erected Barony of Coldinghame being derived from John Stuart of Coldinghame and Sir Alexander Hume younger of Rentoun he pursues a Declarator against this Earl of Hume and the Creditors and Appryzers of the Estate of Hume to this effect that there being a Contract betwixt umquhil James Earl of Hume and Stuart and others whereby it was Declared that the Earl being Infeft in an Annualrent of 200. pounds Sterling out of the said Barony there was nineteen thousand pounds of bygons of the said Annualrent at the Date of the Contract in Anno 1631. Therefore it was agreed that the Earl of Hume should be put in Possession of the said Barony for payment of the said Annualrent for Terms subsequent and for the nineteen thousand Pounds made up of the bygone Annualrents fructibus non compurandis in sortem and that the Earl of Hume who last Deceased having Assignation to the said Contract from the Heirs of Line of the said umquhil James Earl of Hume recovered a Decreet of Possession upon the said Contract in Anno 1643. and entered in Possession accordingly and that the said Annualrent of 200. pounds Sterling after the Decease of the said James Earl of Hume did cease being only provided to the Heirs-male of his Body which failzing c. that therefore the 200. pounds Sterling affecting the Barony in the first place and being free did satisfie the nineteen thousand pounds and freed the Barony thereof Compearance being made for the Earl of Hume and the Creditors who had Appryzed the Barony of Coldinghame It was alleadged that the Earls intromission was not to be ascribed to his Decreet of Possession in Anno 1648. because he had another anterior Title in his Person viz. A former Contract betwixt the Deceast James Earl of Hume and the Heretors of Coldinghame by which he was allowed to Possess till he were payed of 4000. pounds Sterling payable at four Terms for which or any of the Terms he was to enjoy without an accompt fructibus non imputandis in sortem of which Contract there was a thousand pound Sterling unpayed and upon which Contract Iames Earl of Hume had obtained Possession in Anno 1630. So that the late Earl having right to both these Contracts and Decreets from the Heirs of Line and having entred to the Possession without any Porcess of Removing or Mails and Duties against the Tennents but the former Possessors leaving the Possession the Earl entered without opposition and might ascribe his Possession to either of these Rights he pleased and does
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
being for nineteen years without consent of the Patron The Defender answered that albeit both Parties were in acquirenda possessione yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat and therefore unless these Teinds have been Transmitted from the Parson of the Paroch by long Possession or Mortification they are his and the Kings Gift alone cannot take them from his but here the Parson has been in Possession by Setting the Tack produced which is sufficient as to Possession albeit it were null by Exception as it is not and the nullity thereof is only competent to the Person of the granter and not to this Pursuer The Lords found the Kings Gift and Decreet conform with Institution and Collation was not sufficient unless either the Mortification of these Teinds or the Prebenders Possession were instructed Mr. Walter Caut contra Iames Loch Eodem die MR Walter Caut having pursued Iames Loch and his Mother as Tutrix for her Interest for the Mails and Duties of some Appryzed Lands and the quantities being referred to the Tutrix Oath she refused to Depone alleadging that she had forgotten the quantities whereupon the Pursuer craved her to be holden as confest upon the Rental given in by him as if she had acknowledged the same The Lords found she could not be holden as confest being not the Party but Tutrix but they found that she might be forced to Depone by Horning and Caption as other Witnesses Alexander Monteith contra Anderson Iune 28. 1665. THere being mutual Reductions betwixt Monteith and Anderson the former having Right to an Appryzing led in Anno 1619. and the other Mr. Iohn Anderson having adjudged in Anno 1656. Mr. Iohn Anderson insisted on this Reason that Monteiths Apprizing proceeded was on a Sum of 5000. Merks due by Iames Nisbet the common debitor to Gilbert Gourlay after that Iames was Rebel at Mr. Iohn Andersons authors Instance after which no Bond granted could prejudge the other Creditor having used Diligence before but the Bond is null by the Act of Parliament 1621. against Bankrupts It was answered for Monteith that that Act was only against Fraudulent Dispositions between confident Persons without Cause onerousâ— but here a Bond of borrowed Money was onerous and no man was thereby hindered to borrow Money Anderson answered that the Narrative of the Rebells Bond bearing borrowed Money could not instruct against a Creditor using prior Diligence This the Lords Repelled Anderson insisted upon this Reason that Gourleys Bond was granted by Iames Nisbet Iames and William Arnolds all Conjunct Principals without a Clause of Relief and this Bond was assigned by Gourley with this express Provision that no Execution should proceed thereupon or upon the Bond or Inhibition against the Arnolds and so if the Assigney had been pursuing Iames Nisbit for all he might have answered that the Assigney had accepted his Assignation with this provision that Iames Nisbet could not use Execution against the other two Co-principals and therefore he being excluded from his Relief could be only lyable for his third part for he would not have subscribed the Bond but upon consideration of his Relief Monteith answered that all the three principals being bound conjunctly and severally the Creditor might renounce all Execution against two of them and yet crave the whole from the third and there was no more done in this case and albeit there be no Clause of mutual relief exprest yet hoc in est de natura rei So that albeit Nisbet by vertue of the Assignation thought it had been transferred to him could not have pursued the two Arnots yet by the obliegement of mutual Relief implyed he might not as Assigney but as coreus debendi Anderson answered that if the Clause had born only a Provision that no execution should pass upon the Assignation it might have been consistant but it bears that no Execution should pass upon the Assignation or Bond. The Lords found that the Obliegement of mutual Relief was implyed where parties were bound conjunctly and severally albeit not exprest and that the Provision related only to the Bond quantum ad creditorum and did not restrict the implyed obliegement of the Co-principal and therefore repelled this Reason also Robert Keill contra Iohn Seaton Iune 28. 1665. GEorge Seaton as principal and the said Iohn Seaton his Cautioner having granted Bond to Robert Keill and being Charged thereupon both did suspend and having alleadged payment they succumbed and were Decerned Iohn Suspends again and raises Reduction upon minority and lesion The Charger answered First That this Reason was competent and omitted in the former Decreet 2ly That proponing payment did homologat the Debt as if an Heir proponed payment he would not be admitted fo renounce thereafter or to deny the passive Title The Suspender answered that the former Process being in a Suspension nothing was competent but what was instantly verified and so minority and laesion was not competent The Charger answered that the Decreet of Registration was turned in a Libel as being Registrat at the Assigneys Instance not having Intimat during the Cedents Life and at that time the Suspender had raised his Reduction and so it was competent The Suspender answered that he was not oblieged to insist in his Reduction and that the reasons thereof were not proper even in an ordinary Action but only by a Reduction It was furder alleadged that competent and omitted took no place in Suspensions The Lords had no regard to the last alleadgence but repelled the alleadgence upon homologation and upon competent and omitted in respect that minority and laesion is neither competent by way of Suspension or exception but by way of Action of Reduction wherein the Suspender was not oblieged to insist Iames Pitcairn contra Isobel Edgar Iune 28. 1665. UMquhil David Edgar by his Contract of Marriage provided 4000. merks to be payed by him and his Heir of the first Marriage which failling any other his Heirs to the Bairns of the second Marriage The portion of the Daughters payable at their age of 18. and the Sons at 21. with five merks yearly of annualrent after his death for the Childrens subsistence Isobel one of the Children having married after her Fathers death Iames Pitcairn her Husbands Creditor pursues for the sum as belonging to the Husband jure mariti It was answered that the sum was Heretable bearing Annualrent and the Term of payment of the Annualrent was come before the marriage and therefore it did not belong to the Husband jure mariti It was answered that it was not properly an Annualrent but an aliment of five percent and that the Term of payment of the Annualrent was after the Act of Parliament 1641. declaring such Bonds moveable and albeit the Fisk and Relict be there excluded yet the jus mariti is not but is only added by the Act 1661. The Lords found that seing this Provision bear Annualrent whether more or less and that the marriage was
albeit it appears to flow from the Mother yet that is but dolose and in effect it flows from the Father 2. Seing the superplus was appointed to be an Aliment to the hail Children seing there is but one it ought to be modified and what remained above the 600. merks and a competent Aliment to belong to the Creditors The Lords found that the Childs Renunciation should repone himâ— and found that if the Provision had been Exorbitant it might have been counted as fraudulent but they found it not exorbitant seing the Land was offered to the Defenders for 900. merks and there was 200. merks thereof Liferented by another Woman so that there râ—mained but 100. merks for the Child and therefore Repelled the Defenses and Decerned VVilliam Dickson contra Iohn Hoom. Eodem die WIlliam Dickson having charged Iohn Hoom upon a Bond of 37. Pounds Scots He suspends and offers to improve the Bond as not subscribed by him but another Iohn Hoom. It was answered Improbation was not receivable but in a Reduction or where the original Writ was produced But this Bond was Registrate in an Inferiour Court and the Charger was not oblieged to produce nor was the Clerk called The Lords in respect the matter was of small importance admitted the Reason of Improbation the Suspender Consigning principal Sum and Annualrent and declared they would modifie a great Penalty in case he succumbed and ordained Letters to be direct against the Clerk of the inferiour Court to produce the principal Howison contra Cockburn November 17. 1665. THe Executors of David Howison pursue Iames Cockburn for the price of several ells of Cloath which the said Iames by his Ticket produced granted him to have received in name and for the use of the Laird of Langtoun his Master It was alleadged absolvitor because by the Ticket the Defender is not oblieged to pay the Cloath and doth only act in name of his Master and therefore the Merchant ought to have called for the Accompt from his Master within three years which he has not done till many years long after his Masters death It was replyed that the Ticket must obliege him at least docere demandato for his doing in name of his Master could not obliege his Master so that if he be not so oblieged the Merchant loses his Debt and no body is oblieged It was answered that he who Acts with any Mandatar should know his Commission and if he does not know it it is upon his own hazard but if the Mandatar Act not in his own name but his Masters he does not obliege himself and if Servants who receive in their Masters name should be thus oblieged to shew their warrand it would be of very evil consequence seing their Receipt can be proven by Witnesses within three years and their Warrand would not be so probable The Lords found that post tantum tempus the Defender was not oblieged to instruct his warrand but the same was presumed to have been known to the Merchant unless it be proven by the Defenders Oath that he acted without a warrand or that he did not apply the Cloath to his Masters use Baxters in the Canongate November 21. 1665. THere being a Contract betwixt two Baxters in the Canongate to make use of an Oven still keeped hot for both their uses the one pursues the other as desisting and obtained Decreet before the Baillies of the Canongate for 36. Pounds of Damnage which being Suspended It was alleadged ipso jure null as having compearance mentioning Defenses Replys c. And yet expressing none but refers the Defenders Action to the Pursuers Probation by Witnesses who now offered to prove positive that he continued in doing his part The Lords would not sustain this visible Nullity without Reduction though in re minina inter pauperes for preserving of Form Laurence Scot. contra David Boswel of Auchinleck November 22. 1665. UMquhil David Boswel of Auchinleck being Debitor to Laurence Scot in 1000. pounds by Bond He pursues his Daughters as Heirs of line and David Boswel now of Auchinleck his Brothers Son as Heir-mail or at least lucrative Successor by accepting a Disposition of Lands from the Defunct which were provided to Heirs-mail and so being alioqui successurus It was alleadged for the said David no Process against him till the Heirs of Line were first discuâ—â— It was Replyed and offered to be proven that he was oblieged to relieve the Heirs of Line Which the Lords found Relevant It was further alleadged for the Defender that he could not be conveened as lucrative Successor by the foresaid Disposition because the time of the Disposition he was not alioqui successurus in respect that his Father was living It was answered that albeit he was not immediat Successor yet being the mediat Successor the Disposition was precepâ—â—o haereditatis and the Lords had already found that a Disposition to an Oye made him Lucrative Successor albeit his Father who was immediat appearand Heir was living The Lords sustained not the Lylel upon that member for they found it was not alike to Dispone to a Brother as to a Son or a Brothers-son as to an Oye because a Brother is not appearand Heir nor alioqui successurus seing the Disponer has haeredes propinquiores in spe and therefore cannot be presumed to have Disponed to his Brother or Brother Son in fraud of his Creditors seing that by that Disposition he does also prejudge his own Son if he should have one and this 〈◊〉 prejudice to the Pursuer to Reduce the Disposition upon the Act of Parliament as accords Mr. Iames Campbel contra Doctor Beaton November 23. 1665. DOctor Beaton being Infeft in certain Lands Wodset by the Laird of Balgillo does thereafter by a minute take an absolute Disposition thereof for a price exprest in the Minute whereupon Mr. Iames Campbel arrests in Doctor Beatons hands all Sums due by him to Balgillo for payment of a Debt due by Magillo to Mr. Iames and likewise Iuhibits Bagillo after which there is a Tripartite Contract betwixt Bagillo on the first part the Doctor on the second and Iohn Smith who bought the Lands on the third the Doctor and Bagillo Dispone with mutual consent and the Doctor particularly assigns the Minute to Smith Bagilâ—o Renounces the Minute as to the price and Smith is oblieged to pay the Wodset to the Doctor the Debitor being before conveened for making arrested Goods forthcoming and having Deponed that he was owing no Sums to Bagillo the time of the arrestment but by the Minute which was an Inchoat Bargain never perfected but was past from thereafter and that he was not Disponer to Smith but only consenter whereupon he was assoilzied But Mr. Iames Campbel having now found the Tripartite Contract pursues the Doctor again thereupon super dolo that by passing from the Bargain and yet assigning the Minute and not destroying it he had dolose evacuate Mr. Iames Inhibition and Arrestment seing Smith
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
Pursuer after the Crime and he having pursued Argyl for compt and reckoning in anno 1655. does not constitute any new voluntarâ— Right nor can it be any way collusive being for an anterior cause and after a pursuit and therefore it must work this much to show that the 5 years was interrupted and in the Course thereof both the Pursuer and Forefaulted Person acknowledged this Right in question The Lords found the Reply relevant upon the Deeds of Interruption alleadged by the Pursuer joyntly to elid the Act of Parliament Mr. Iohn Harper contra his Vassall Iuly 25. 1666. MR. Iohn Harper pursues a Declarator of Non-entry against his Vassall who alleadged that he was only lyable for theretour Maills till the Decreet of general Declarator was obtained It was answered the common custome was that from the Citation in the general Declarator Mails and Duties were due in the special because the general Declarator declares the Non-entry since the date of the Summons and so the Mails and Duties are not due from the date of obtaining the Decreet but from the years decerned therein which is from the date of the Summons The Lords found the Mails and Duties due since the time of the Citation and not only since the time of the Sentence Earl of Southesk contra Marquess of Huntly Iuly last 1666. EArl of Southesks cause mentioned 23 Iuly last was this day advised as to another Defense viz. That my Lord Argyl had right to Beatouns Appryzing of the Estate of Huntly which was long anterior to the Pursuers Infeftment and whereunto Huntly hath right as Donatar to Argyl's Forefaulture This Coutract of the Cumulative Wodset being granted in Anno 1656. It was answered that Beatoun before he was Infeft upon that Appryzing had renunced all benefit of the Appryzing and discharged the same in so far as it might be prejudicial to the Pursuers Right which is presently instructed It was answered that Renunciation was but personal and was never Registrat and so could not be effectuall against any singular Successor much less against the Kings Donatar having a real Right It was answered that Appryzings are not of the nature of other real Rights but they may be taken away by Intromission Payment or Discharge of the Appryzer and there needs no Resignation nor Infeftment It was answered that albeit by the Act of Parliament 1621. Appryzings may be taken away by Intromission and that it hath been extended to payment yet never to such personal Back-Bonds The Lords found the Appryzing to be taken away by Beatons Back Bond renuncing the same in so far as concerns this Pursuer and found the same relevant against the Donatar Thomas Crawfoord contra Town of Edinburgh Eodem die THomas Crawfoord having Gift of ultimus haeres of a person to whom the Town of Edinburgh was Debitor pursues for payment thereof The Defender alleadged no Process till the Gift were declared The Pursuer answered no necessity of a Declarator in this case more then in a Gift of Recognition and Waird and that there was no person that could be particularly cited The Lords found the Defense relevant that this Gift behoved to â—e declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross. Sir Lodovick Gordon contra Sir Iohn Keith Eodem die SIr Lodovick Gordon being Assigned to a Sum due to Sir Robert Farquhar by Sir Iohn Keith pursues Sir John for payment who alleadged absolvitor because he had Right to the Sum himself as Donatar to Sir Roberts Escheat and that the Sum was Moveable albeit it bare Annualrent in so far as the Term of payment was not come It was answered that Sums were Heretable as to the Fisk by the Clause of Annualrent and the only exception was that if the Term of payment of the Annualrent was not come the Same was Moveable and nothing in relation to the Term of payment if the Annualrent was come due before the Rebellion The Lords found that the coming of the Term of payment of the Annualrents made the Sum to become heretable as to the Fisk and therefore repelled the Donatars defense Merchants in Dundee contra Spruce Englishman November 3. 1666. SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce an Englishman they pursue him for the price and because he disappeared and no body came to receive the Wines they supplicat the Lords that they would give warrand to them to sell the Wines least they should perish and to be lyable only for the best price they could get for them they did also represent that Spruce had a Factor in Edinburgh who being cited by a Macer did not appear The Lords refused the Supplication and found that the day of the appearance of the Summons not being come and the Englishman neither being present nor oblidged to be present they could do nothing against him more then if he had not be in cited and so could not sequestrat nor appoint the Wines to be sold but they lowed the Partie to protest that they had done all diligenceâ— that the Wines might not perish whereof the Lords would take consideration in any Process that should occure Thomas Canham contra Iames Adamson November 7. 1666. JAmes Adamson having disponed a Tenement to Ioseph Iohnstoun who married his Daughter in Conjunct-fee and the Heirs betwixt them which failzing to devide between their other Heirs in the Disposition there was expresly this Clause providing that the said Joseph and his foresaids make payment to the said James Adamson or any he shall name the Sum of six hundred pounds wherein if he failzie the said Right and Disposition shall expire ipso facto In the Infeftment the former Clause was repeated but not the Clause Irritant This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt and being Infeft did pursue James Adamson for removing who objecting the proviso was notwithstanding decerned to remove Now he pursues for the Maills and Duties during his occupation James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision It was answered this was but personal to pay and could never oblidge a singular Successor and all the Pursuer could do was to proceed upon the Clause irritant by way of Declarator The Lords in the end of the last Session having only seen the Disposition containing the said Clause but not the Infeftment repelled the Defense but reserved the Declarator but now having seen that the proviso of payment was in the Infeftment the cause being so favourable a person disponing to his own Daughter and good Son and the Disponer yet in possession they did without multiplying furder Process sustaine it by exception George Shein contra James Chrystie November 15. 1666. GEorge Shein having pursued umquhil David Chrystie as charged to enter Heir to James Chrystie his Father for payment of a Debt of his Fathers David renunces to be Heir whereupon George
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâ—ur jure privato and albeit noâ— voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
bare no Annualrent The Lords found that the Tutor behoved to have a competent time to uplift and Re-imploy these Sums for which they allowed him a year and that he was lyable for Annualrent after that year 2ly How soon a Tutor was obliged to do Diligence to uplift his Pupils Means so that if the Debitor became Irresponsable the Tutor was lyable The Lords found that if the Pupils Sums were in the hands of Debitors unquestionably Solvendo the Tutor was not obliged to lift the same unlesse the condition of some of the Debitors or Cautioners became worse at which time he was obliged to do all Diligence for uplifting the sums unlesse the Debitors became to be known to be altogether broken upon a sudden which he could not foresee 3ly VVhat Diligence a Tutor was obliged to do whether Horning was sufficient or if Captionâ— Poynding and Appryzing were necessary The Lords found that in different Cases different Executions were requisite viz. If the Debitor were known to have Lands appryzable or Goods poyndable or Sums arrestable that the Tutor was obliged to do Diligence accordingly and if not to use personal Execution 4ly Whether the Tutor should have allowance of such Sums as he payed without Sentence The Lords found such sums allowable unless a competent Defense could now be proponed which was known and probable to the Tutor at the time of payment Iohn Watson contra Iames Law Iuly 12. 1667. JAmes Law having Disponed certain Lands to Iohn Watson with absolute warrandice and after the Disposition there being a Designation of a part of the Land for Horse and Kines Grasse to the Minister conform to the Act of Parliament 1661. Watson pursues for Warrandice upon that distresse The Defender alleadged absolvitor because the distresse is by a subsequent Law falling after the Disposition It was answered first That absolute Warrandice does even take place in the case of a subsequent Law at least in so far as the Pursuer suffers detriment because if the Lands had continued the Defenders had been so burdened and therefore is lyable in quantum lucratus est 2ldy This is no supervenient Law because the Act of Parliament 1661 Is a Reviving of the Parliament 1649. which being Rescinded in the said Parliament 1661. By a posterior Act thereof concerning Manses and Gleibs is declared to be valid as if it had been made in the year 1649. It was answered to the first that nothing can infer Eviction or Recourse but that which had a Cause anterior to the Warrandice unlesse it had been otherwise exprest Nor is it any ground that if the Disponer remained Heretor he had been lyable otherwise all other supervenient Burdens would Return not only upon the Immediat but upon all the Disponers but all such accidental Superveniencies are upon the Purchasers hazard as well as the Advantages are to his benefit To the second the time of this Disposition the Parliament 1649 was Rescinded and the new Act was not Enacted Neither by the new Act is it declared to be effectual from the year 1649. As to the Horse and Kines Grasse but only as to the Manse It was answered that was but a mistake of the Draught of the Act of Parliament there being no Reason wherefore it should be drawn back as to Manses more then to the rest but it was the meaning of the Act of Parliament to Revive the former Act in all points It was answered that the meaning of Acts of Parliament may not be extended contrair to the words neither can any thing be supplyed that is omitted in a Statutory Act. The Lords found no Recourse upon the Distress arysing from the Act of Parliament 1661. and that the drawing back thereof being expresly as to Manses which is adjected as a limitation could not be extended to the Ministers Grass which is statute in a different way in this then in the Act of Parliament 1649. From this the Heretors are only to pay twenty pounds of Money and in the former Lands were only to be designed therefore found the Distress that being by a supervenient Law that the Warrandice did not reach thereto Margaret Scot contra Sir Laurence Scot. Iuly 14. 1667. SIr William Scot of Clerkingtoun having granted Assignation to his Daughter Margaret Scot of a Sum due by Wauchtoun Pursues Sir Laurence his Son as Haver to deliver the same It was alleadged for the Defender that there was a Clause in the Assignation reserving a power to Sir William to alter and Dispone during his Life and that he did Assign this Bond to Iohn Scot. It was answered that he took a Back-bond from Iohn Scot bearing that the Assignation was granted in Trust to this effect only that Iohn Scot should do diligence thereupon It was answered that the Back-bond bears Iohn Scot to be obliged to denude in favours of Sir William Scot his Heirs and Assigneys whereby the Assignation is altered The Pursuer answered that there appears nothing of the alteration of the Defuncts mind more then if he had appryzed in his own name whereby the Bond would have been adjudged to him his Heirs and Assigneys which is no more then if an Assigney should use the name of the Cedent which would no ways infer that by adjudging Land to the Cedent and his Heirs they pass from the Assignation The Lords found no alteration in the Pursuers Assignation by the Right made to John Scot in his Back-bond which also bare the Right to John Scot was made to do Diligence and for no other end Mr. John Eleis contra Elizabeth Keith Mary Steuart and Keith Iuly 16. 1667. THis Cause at the Instance of Mr. Iohn Eleis against Keiths being Dispute the twenty seventh of February last The Lords found Inhibitions to reach Lands Acquired after the Inhibition but superceeded to give answer to that Point whether the Inhibitions were to be extended to take away Renunciations of Wodset Lands which being now Debated It was alleadged that an Inhibition could not hinder the Granter of a Wodset to pay his Debt and accept of a Renunciation from the Person Inhibit because a Renunciation is but a Discharge and Inhibitions were never found to take away Discharges of Heretable Bonds nor to hinder any Party to pay their Debt but on the contrair It was an universal Custom over all the Kingdom that Debtors should pay their Debts and did accept Discharges and Renunciations without looking into the Registers which hath been most frequent not only in Wodsets but mainly in Infeftments of Annualrent upon Heretable Bonds which no man ever doubted to pay till he searched the Registers of Inhibitions et communis consuetudo pro lege habetur It was answered first That the Inhibition bears expresly a Prohibition to grant Renunciations but no Prohibition to grant Discharges and as to the Custom it cannot be showen that persons did pay Wodsets and take Renunciations from these that were Inhibit much lesse that the Lords by their Decisions did approve
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n
Eodem die MAster Andrew Birny having granted a Bond to Alexander Short blank in the Creditors Name he for an equivalent Cause delivered the same to David Henderson who filled up his Name therein and Charges Mr. Andrew therefore he Suspends on a Reason of Compensation upon a Debt owing to him by Short to whom he delivered the blank Bond for whom he became Cautioner before he granted the Bond and payed the Debt partly before and partly after this Bond so that Henderson by filling up his Name being Assigney and Short Cedent payment or compensation against the Cedent before the Assignation is relevant against the Assigney It was answered that in this Case compensation is not relevant because the very Delivery of a Bond in a blank Creditors Name imports that the Receiver thereof may put in any Mans Name he will and he may never make use of Compensation against him whose Name is filled up otherwise why should the Creditors Name have been left blank which if it had been filled up it behoved to have had an Assignation which is but a Procuratory in rem suaem so that the Procurator can be in no better state nor the Constituent but the blank makes the Person filled up Creditor principally The Lords found Compensation not relevant against a Person whose Name was filled up in the blank being a singular Successor to him who first received the Bond. Mr. William Chalmers contra Wood of Balbegno Eodem die MAster William Chalmers Parson of Feltercarn pursues Reduction of a Tack of the Teinds of the Paroch granted by his Predecessors on this ground that it is null by Act of Parliament as wanting Consent of the Patron The Defender alleadged Absolvitor because the Pursuer had Homologat his Tack in so far as he had received payment of the Duty conform to the Tack which was a clear acknowledgement thereof It was answered that this could only be an Homologation for the years received and could not Homologat the Tack itself because the Tack was a standing Right valid till it were Reduced and the Pursuer could get no more then the Tack-Duty till he should Reduce the same The Lords found this no Homologation to validat the Tack Lord Justice Clerk contra Home of Linthel the Procurator-Fiscal and Officers February 28. 1668. THe Lord Iustice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony The Officers Poinded an Ox in October after the Plowing was begun The Lord Iustice Clerk pursues a Spuilzy as being Poinded in Labouring time and insisted against Linthel as Depute who gave the Decreet and Precept to Poind and as he who knew of the Poinding of the Ox by the Officer before he was Delivered and commanded to Deliver him and against the Officer who Poinded and the Procurator Fiscal who by the Executions of the Poinding produced Received the Ox from the Officer at the advising of the Cause Linthel having Deponed by his Oath that the Officer had told him an Ox was Poinded and he commanded the Officer to Deliver him and that he knew not he was a Labouring Ox so that that member not being proven the question was whether Linthel as Deput giving a Precept to the Officer to Poind in common form was lyable for the Spuilzy if the Officer did illegally Poind and so was answerable for the Fault of the Officer The Lords found him not lyable and therefore Assoilzied Linthel and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal especially seing the Defenders defended themselves with the Poinding and themselves produced the Execution and for the violent profits the Lords Decerned 5. Shilling for every day from October to May inclusive being Labouring time and that yearly since the Spuilzy till the Sentence Duke Hamiltoun contra Maxwel of Moreith February 29. 1668. THe Duke of Hamiltoun as Collector-General of the Taxations having Charged Maxwel of Moreith he Suspends upon this Reason and alleadges that he had Imparked and Inclosed a ten Merk Land since the Act of Parliament 1661. anent the Inclosing of Grounds by which all Lands to be Inclosed thereafter are to be free of all publick Burdens It was answered that the Act of Convention was posterior and had no such exception but on the contrair took away all former exceptions It was answered that an Act of Parliament cannot be Derogat or Abrogat by an Act of Convention The Lords found the Reason relevant notwithstanding of the Act of Convention Ioanna Mâ—alexander contra Charles Dalrymple Iune 9. 1668. IOanna Mâ—alexander a Sister Daughter and one of the nearest of kin of Umquhile Elizabeth Dalrymple pursues a Reduction of the said Elizabeth her Testament whereby she nominat Charles Dalrymple her Brothers Son her Executor and universal Legator upon this Reason that in the time of the making that Testament she was not compos mentis but fatuous and insensible The Lords having appointed the Witnesses of the Testament and other Witnesses to be Examined thereanent the Witnesses in the Testament and Writer thereof being Examined Deponed that she was in her right Miâ—â— and gave order for drawing of the Testament and gave order to Subscribe it the other Witnesses Deponed that about that time for several weeks before and some time after the Defunct was fatuous and not in a right Mind and to every question proposed to her she answered alwise yea yea and some words of Ravery which she frequently spoke The Lords having also caused Re-examine the Testamentar Witnesses that it might appear whether she did only answer to Interrogators as when it was answered whether she would have Charles Dalrymple her Executor and universal Legator and whether she said yeaâ— yea and whether she gave Direction without a forgoing question by words that might signify her Sensibility And having considered the whole Testimonies they found that Probation most pregnant that she was Fatuous and insensible at the time of the making the Testament and therefore Reduced albeit the Witnesses were Extraneous that proved and were not present at making the Testament at which time a lucide interval of a Person Distempered by Disease not constantly Fatuous might have been sufficient This was stoped till it were further heard Sir Iohn Gibson contra Iames Oswald Iune 13. 1668. SIr Iohn Gibson and Iames Oswald having mutual Declarators of Property of a peice of contraverted Ground lying on the Mâ—rch between two Gairs or Bentish Strypes of Ground through a Moor equal number of Witnesses being Examined for either Party one Witnesse for either side proved 40. years constant Possession of the Party Adducer and that they did interrupt the other Party and turned away their Cattel when they came over some of the witnesses did prove either Party to have had Possession above 40. years since but did not prove that they knew the same constantly so Bruiked neither did they know any thing to the contrary and
many Witnesses on either side proved not only that the â—eithes Lybeled by the Party who Adduced them were holden and repute the true Marches for a very long time but did not express how long but some of them Deponed that Stones in the meithes were commonly holden and repute to be March Stones and so the Testimonies were contrary and if there had not been mutual Probation either Party would have proven sufficiently and neither Party having bounding Charters the question arose whether the â—pregâ—antest Probation should be preferred to give the property to that Party and exclude the other or if both Parties proving so long Possession and mutual interruptions the Probation should infer a promiscuous Possession and Right of the contraverted peice of Land and so resolve into a Commonty albeit neither Party Claimed nor Lybeled Commonty The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie albeit they found that Sir Iohn Gibsons Witnesses were more pregnant yet not so far as to exclude the others but declared that if either Party desired that piece to de divided they would grant Commission for dividing the same and setting down of March-Stones Burnet contra Nasmith Iune 19. 1668. ALexaâ— deâ— Burnet of Carlâ—ps being Creditor to Sir Michael Nasmith of â—osso pursues a Declarator against Iames Nasmith his eldest Son to hear and see it found and declared that an expired Appryzing of the Estate of Pâ—sso now standing in the Person of the said Iames is Redeemable by the Pursuer as a Creditor from the said Iames as appearing Heir of the Party against whom it was deduced within ten years after the appearand Heirs Right upon payment of the Sums that the appearand Heir truly gave out conform to the Act of Parliament betwixt Debitor and Creditor The Defender alleadged Absolâ—itor because the Act of Parliament could not extend as to his Case because the Act bears where appearand Heirs takes Right to Appyzing of their Predecessors Lands but the Defenders Father being living cannot be said to be his Predecessor or that the Defender is his appearand Heir and Statutes are stricti juris not to be extended to like Cases It was answered that Reason of the Law given in that part of the Statute being the same and rather more in this Case where there may be Collusion betwixt the Father and the Son there is no ground to except the same from the Act of Parliament the words whereof do bear this Case for in the ordinar Stile it uses to be thus express such a person to be eldest Son and appearand Heir to his Father and albeit his Father be not dead he may well be said to be his Predecessor not only in regard of his age but as being his Predecessor in the Right of these Lands whereunto the Son is a Successor albâ—it he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâ—ssors Life and therefore declared Agnes Hadden and Mary Lawder contra Shorswood Eodem die THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary Lâ—wder they pursue Magdalen Shorswood his nearest of kin to dâ—liver the same who alleadged Absolvitorâ— because the Assignation was never delivered but being made a year before the Defunctsdeath remained by him till his death and was never delivered and it is not the Subscribing of a Writ but the Delivery thereof that makes it that Parties in whose favours it is conceived unless the Party were in Family as a Fathers Câ—stody is the Childs Custody and equivalent to Delivery and unless the Writ had contained a Clause to be valide without Delivery which this doth not The Pursuer answered that this Assignation reserveth expresly the Defuncts Liferent and a power to dispose thereof during his Life which sheweth his mind not to deliver the Assignation even when he made it otherwise the Reservation in his own favour would not have been in his own hand which sufficiently shews his mind that the Writ should be valide though not delivered in his life 2. This being a moveable sum this Assignation is in effect dâ—natio mortis causa and so must be valide without Delivery for a Testament or Legacy is valide without Delivery It was answered to the first Alleadgance that the Defunct might have Delivered the Assignation and keeped the Bond so that the keeping of the Assignation was not necessary and so did not import his meaning to be that the Assignation should be valide without Delivery To the second this Assignation is in the Terms and Nature of a proper Assignation and is a Right inter vivos and not donatio morâ— is câ—usa because donatio mortis causa is but as a Legacy affecting only the Deads part but if this Assignation had been Delivered it would have affected all and so could be no donatio mortis causa and albeit it was not Delivered it remains the same kind of Right The Lords Repâ—lled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâ—med that the Defunct had no Children and the said Agnes Hadden who was to have 400. merks of the sum was Cousin-german to the Defunct Relict of Galrigs contra Wallace of Galrigs Eodem die THe Relict of Galrigs pursues for Mails and Duties upon her Seasine given propriis manibus It was alleadged for Galrigs no Process because the Seasine is but assertio notarij without a Warrand there being neither a Contract nor Obligation to give such a Seasine It was answered that Instruments of Seasine given to a Wife pâ—oprâ—is manibus have a sufficient Adminicle and presumption by the Marriage and the duty of the Husband to provide the Wife especially where there is no Contract nor other Provision but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine and his Creditors which is a strong presumption he would give her something in lieu thereof Which the Lords sustained Steuart of Torrence contra Feuars of Ernock Iune 24. 1668. JAmes Steuart as Donator to the Ward of the Laird of Ernock by the Lord Semple of whom Ernock held the Lands Ward pursues the Possessors for Removing who alleadged absolvitor because they brooked their Lands by Feues granted by the Laird of Ernock The pursuer answered non relevat unless the Feues were consented to or Confirmed by the Superiour for by the Feudal Law no deed of the Vassal can prejudge the Superiour when the Lands are Ward The Defenders alleadged their Feues needed no Confirmation because they are warranted by Law by the 72d Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King Ita est The first Act cannot
or out of any other the Canons Portions of this Kirk George Shein contra Iames Christie Eodem die G Christison of Bassallie gave an Infeftment to his eldest Son of the Lands of Bassallie and to his second Son of an Annualrent of 86. merks forth thereof both of one date and both reserving the Fathers Liferent Iames Christie hath Right by Appryzing led against the eldest Son in his Fathers life to the Lands George Shein hath Right by Adjudication against the second Son to the Annualrent and pursues a poinding of the Ground It was alleadged for Iames Christie that Sheins Authors Right was base never cled with Possession and so null whereas his Right was publick by an Appryzing and had attained to Possession It was answered that the Fathers Liferent being reserved the Fathers Possession was both the Sons Possession and did validat both their Rights It was answered that a Disposition by a Father to his own Children reserving his own Liferent though Infeftment follow is alwayes accounted simulat and never accounted cled with Possession by the Fathers Possession as hath been frequently decided It was answeredâ— that albeit in Competition betwixt base Infeâ—tments granted to Children and Infeftments granted to Strangers upon onerous Causes the Childrens Infeftment though prior and though reserving the Fathers Liferent uses to be preferred yet here that holds not for both Infeftments are granted to Children both of one date and neither of them to Strangers or upon onerous Causes and therefore the Reservation here is without suspition of Simulation and the Fathers Possession must both validat the second Sons Annualrentâ— and the eldest Sons property Which the Lords found Relevant and that the Fathers Possession by this Reservation did sufficiently validat both the Sons Infeftments and that the Possession of one after his Death or of any succeeding in his Right did not exclude the other or his singular Successor Mr. Robert Burnet contra Swane Eodem die MR. Robert Burnet Tutor of Lâ—yes pursues for Mails and Duties of a Tenement in Aberdene It was alleadged for Swane the Defender Absolvitor because he stands Infeft in the Lands and by vertue of his Infeftment in Possession and albeit the Pursuers Infeftment be prior it is null neither being Registrat in the Register of Seasins nor in the Town Clerks Books of Aberdene according to the custom of all Burghs but hath been latent many years and no vestige of it in the Town Books so that the Defender was in bona fide to Contract with the common Authour and Apprize thereafter It was answered that the Act of Parliament excepted Seasins within Burgh and the Pursuer having the Town Clerks Subscription was not answerable for his keeping a Prothecal or Record Which the Lords found Relevant and sustained the Seasine Colquhoun and Mcquair contra Stuart of Barscub Iuly 1. 1668. THe Laird of Barscub having seued certain Lands to Colquhoun and Mcquair to be holden of himself in the Contract of Alienation there is a special Clause that because the Lands are holden Ward of the Duke of Lenox therefore Barscub is obliged to relieve these Feues of any Ward that shall fall in time coming Thereafter Barscub Dispones the Superiority of these Lands and by the Death of his singular Successor his Heir falls in Ward whereupon Sentence was obtained against the Feuars for the Ward Duties and the avail of the Marriage and they now pursue relief against Barscubs Heir upon the Clause of Warrandice above-written The Defender alleadged that the Libel was no ways Relevant to infer warrandice against him upon the said Clause because the meaning thereof can only be that he as Superiour and so long as he remained Superiour shall relieve the Feuars which ceases he being now Denuded of the Superiority otherwise it behoved to have imported that he should never sell the Superiority without the Vassals consent which no Law doth require or if the Lands had been Appryzed from him he could not be lyable for the Ward of the Appryzers Heir which is cleared by the ordinary Custom there being nothing more frequent in Charters than Clauses of absolute warrandice and yet none was ever overtaken thereby after they ceased to be Superiours The Pursuer answered that his Libel was most Relevant because this being an Obligement conceived in their favours by Barscub not qualified as Superiour no Deed of Barscubs without their consent can take it from them unless Barscub when he sold the Superiority had taken the new Superiour obliged to receive the Vassals with the same warrandice but now the new Superiour not being obliged by this personal Clause Barscub the old Superiour must remain obliged especially in a Clause of this nature which is express for all Wards to come The Lords Repelled the Defense and Sustained the Libel and found the Superiour albeit Denuded lyable for Warrandice Thomas Rue-contra Andrew Houstoun Iuly 3. 1668. ANdrew Houstoun and Adam Mushet being Tacksmen of the Excize did Imploy Thomas Rue to be their Collector and gave him a Sallary of 30. pound Sterling for a year thereafter he pursued Andrew Houstoun upon his promise to give him the like Sallary for the next year and in absence obtained him to be holden as confest and Decerned Which being Suspended he obtained Protestation and therefore raised Caption and apprehended Andrew Houstoun at Wigtoun who gave him a Bond of 500. Merks and got a Discharge and being Charged upon the Bond of 500. Merks he Suspends on these Reasons that Thomas Rue had granted a general Discharge to Adam Mushâ—t who was his Conjunct and coâ—reus deâ—endi afâ—er the alleadged Service which Discharged Mushâ—t and consequently Houstoun his Partner 2dly The Decreet was for Sallary and it was offered to be proven that Rue for his Malversation was by warrand from Ceneral Monk excluded from Collection that year and by the Discharge of the Decreet and this Bond both of the same Date and VVitnesses it did appear that this Bond was granted for the Decreet and if the Decreet were Reduced by the Reduction thereof depending the Bond would fall in consequence as granted for the same Cause The Charger answered that he was now not obliged to Dispute in relation to the Decreet First Because the Suspender had Homologat the same by taking a Discharge thereof and giving a Bond therefore 2dly There was not only a Homologation but a Transaction upon a Reference made by the Parties to â—aldone conform to his Attestation produced so that that Transaction cannot be recalled upon any pretence but is the most firm and Obligatory Contract of any The Suspender answered that his payment making and taking Discharge was no Approbation nor Homologation but that he might reduce the Decreet and repeat if he had payed or been poynded and so may retain especially seing it was done metu Carceâ—is he being taken with Caption and as to the Transaction he denies the same neither can it be instructed by Baldones Attestation but by the
of modification and locality and albeit the Minister had Discharged his whole Teind yet as to the superplus which is the Tacksmans part the Discharge was meerly gratuitous and was not upon payment made and the Pursuer was willing to allow what he truely payed the Defender answered that in all Benefices and Tacks use of payment importing a verbal Tack is sufficient per tacitam relocationem till it be interrupted so that if the Minister had granted a Tack in Writ but for one year and the Defender had continued in Possession per tacitam relocationem he was bona fide Possessor fâ—cit fructus consumptos suos even albeit the Minister had no Right so his use of payment for so long a time must work the same effect neither can it be made appear that the Defender or his Predecessors payed more then what they now pay The Lords Sustained the Defense and found the Defender only lyable for use of payment until Citation or Inhibition Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon Eodem die UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill his Son had a Son and four Daughters his Son being his appearand Heir and being Addebted a Sum to Mr. Iames Alexander he Charged him to enter Heir in special to Richard his Grand-father and Apprized the Lands from him whereunto Sir Charles Erskin has now Right the said Son being now Dead and never Infeft Mr. George Iohnstoun takes Right from the four Female Grand-children and Serves them Heirs to their Grand-father but before they were Infeft there was an Infeftment or Charge upon the Apprizing at the instance of Mr. Iames Alexander and in a former competition Sir Charles was preferred upon Mr. Iames Alexanders Right as denuding the Male Grand-child appearand Heir for the time in the same manner as if he had been Infeft now Mr. George Iohnstoun upon the Femals Right raises a Declarator to hear and see it found and declared that Mr. Iames Alexanders Apprizing was satisfied and extinct by Intromission before the legal was expired It was alleadged that the Pursuers as Heirs Served and entered to Richard their Grand-father had no interest to Redeem the Apprizing led against Robert their Brother unless they were also entered Heirs to their Brother which Robert if he were alive might Redeem the Apprizing against himself so that the legal Reversion being in his Person cannot belong to his Grand-fathers Heirs but to his own Heirs and as he or his Heirs could only Redeem so can they only declare the Apprizing to be satisfied by Intromission neither can the Reversion belong to two both to the Heirs of Robert who was Charged to enter Heir and to the Heirs of the Grand-father who Died last Infeft It was answered that Robert never having in his Person any real Right as never being Infeft albeit fictione juris the Act of Parliament gives the Creditors like Right upon his disobedience to enter being Charged as if he had entered yet that is a meer passive Title and could give no active Title to Robert or any representing him either to Redeem or to call the Apprizer to an accompt till they were entered Heirs to the person last Infeft for albeit the Creditor Apprizer has a real Right yet the disobedient appearand Heir has none and albeit the Lords might suffer the disobedient appearand Heir or his Heirs to Redeem the Apprizing because the Apprizer had no interest to oppose the same being satisfied much less can the Apprizer now oppose the Pursuers who being Infeft as Heirs to Richard have the real Right of Fee in their Person and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir which being a minor Right is implyed and included in the Property Which the Lords Sustained and found that the Heirs of the person last Infeft being Infeft might Redeem or declare against an Apprizer who Apprized from an appearand Heir lawfully Charged albeit they were not of that appearand Heir The Creditors of James Masson contra Lord Tarphichan Eodem die SEveral English-men Creditors to Iames Masson who lately broke being Infeft in several Annualrents out of Lands of his pursue Poinding of the Ground compearance is made for the Lord Tarphichan Superior and his Donator to the Liferent Escheet of James Masson who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent the Ground could not be Adjudged but the profits behoved to belong to the Superior and his Donator It was answered that the Superior or Donator had no Interest by the Rebellion of James Masson because before the Rebellion James Masson was Denuded in favours of his Son and he Received as Vassal so that the Vassal for the time not having fallen in Rebellion the Superior can have no Liferent Escheat The Superior answered that the Creditors of Masson having been once Vassal and as Vassal constituting their Annualrents they could not object upon the Right of his Son unless they had derived Right from his Son 2dly The Superior is also Creditor and hath Reduced the Sons Right as fraudulent in prejudice of him a lawful Creditor It was answered that the Superiors Right as a Creditor upon the Reduction doth not simply annul the Sons Fee neither doth it at all restore the Father again because it being but a Reduction to a special effect viz. that the Creditor may affect the Lands by Apprizing upon his Debt anterior to the Sons Infeftment notwithstanding of his Infeftment the Sons Fee stands but burdened with that Apprizing so that upon neither ground the Superior can have the Right of a Liferent Escheat of him who once was his Vassal but was Denuded before Rebellion and which is most competent to the Pursuers as well as if the Superior had been Denuded and another Superior Infeft if he or his Donator had been pursuing for a Liferent any person Infeft in the Land might well alleadge that he had no Interest as Superior being Denuded The Lords found that in neither case the Superior or Donator could have interest in the Liferent Escheat Mr. John Hay contra the Town of Peebles January 20. 1669. MAster John Hay the Clerk having pursued a Reduction and Improbation against the Town of Peebles of all Right of Ascheils belonging to him in Property containing also a Declarator of Property of the saids Lands of Ascheils and that certain Hills lying towards the Town-lands of Peebles are proper Part and Pertinent of Ascheils He insists in his Reduction and Improbation for Certification or at least that the Defenders would take Terms to produce The Defenders alleadged no Certification because they stand Infeft in these Hills in question per expressum and the Pursuer is not Infeft therein The Pursuer answered that he offered to prove that they were proper Part and Pertinent of the Lands of Ascheils whereof he produces his Infeftment The Defenders answered that till the samine were
for the Earl of Hume and was content that Witnesses should be Examined anent the Inhibition and Apprizings being still in the Possession of the Earl of Hume in his Charter Chist but not upon any other ground to take away his Assignation and solemne Right which cannot be taken away by Witnesses but scripto vel juramento and most of these presumptions are but weak conjectures no wayes inferring that Ioussie was payed by the Earl of Humes Means and the great friendship that was betwixt Annandail and Hume alleviats the same it being the cause for which Annandail forbore to take Infeftment or do Diligence thereby to allarum Humes Creditors that his Inhibition would always work his preference and on that same ground did consent to several Creditors Rights there being enough remaining for him and which was an evidence that this Right was generally known and that without it Hume could not give Security The Lords ordained Witnesse sexâ— officio to be Examined upon all the points alleadged for â—learing of the Trust. The Kings Advocat contra the Earl of Mortoun and Viscount of Grandison February 29. 1669. THe Kings Advocat pursues a Reduction of the Rights of the Earldom of Orkney and Zetland granted by the Deceast King Charles the first or by this King himself to the Earl of Mortoun or Viscount of Grandison and produces a Contract betwixt the King and the Earl of Mortoun in Anno 1643. and a Charter following thereupon whereby the Lands are granted and Disponed blench with several extraordinaâ— Priviledgâ—s as having right to the Bullion and other Customs of Goods Imported there and also a Charter in Anno 1646. by the King to the said Earl relating to a Dissolution in the Parliament 1644. containing nova daâ—tus and bearing also blench there is also produced an Infeftment granted to the Viscount of Grandison and after the said Infeftment a Ratification by the Parliament 1661. In the which Ratification there is contained a Dissolution of the Earldom of Orkney and Zetland in favours of Grandison wherein also the Dissolution formerly made in favours of Mortoun in Anno 1644. is particularly Rescinded upon this consideration that neither the King nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed nor Dilapidat without an express aâ—t of his own Ratified by Parliament After this Dissolution in favourâ— of Grandison the King granted no new Infeftment to Grandison The Advocat having holden the production satisfied with the Writs produced Mâ—â—toun and Grandison compeared not at all and some others having publick Rights from them being called did also pass from their compearance and submitted to the Kings favour and compearance being made for some of the Vassals holding of Mortoun they were not admitted because they produced no Wâ—its to instruct there Interest so the Lords proceeded to Advise the Reasons of Reduction which were upon these points First That by the Law and several particular Acts of Parlâ—ament the Patrimony of the Crown being the Lands and Customs annexed to the Crown might not be Disponed by the King unless the samine upon weighty Motives and Considerations had been Dissolved by his Majesty and the Parliament and Dissolutionsâ— made after Infeftments are not valide Parliament 1597. cap. 236. and by the 234. Act of that same Parliament the annexed Property can not be Seâ— otherwise but in Feu Ferm so that the Earldom of Orkney being annexed to the Crown by the annexation produced in Process and the Contract and Charter 1643. being before any Dissolution is absolutely null and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records and though it were it is Rescinded in the Ratification in favours of Grandison in the Parliament 1661. upon so weighty a Reason as the King or his Commissioner not being present And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of privat Rights yet that cannot reach to the Patrimony of the Crown especially seing in that same Parliamentâ— 1661. His Majesty having Revocked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation he might not do to the Derogation of his Honour or Crown the Parliament has Ratified the same Revocation as to all Rights granted since 1637. Contrair to the Laws and Acts of Parliament preceeding 1637. and likewise by an express Act of Parliament it is provided that no Ratification in Parliament shall prejudge the Crownâ— or supply a Dissolution and that none of the Kings Customs which are also annexed can be effectually Gifted The Lords found these Reasons Relevant and proven and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted Pargilleis contra Pargilleis February 26. 1669. UMquhile Abraham Pargilleis having no Children but one Bastard Daughter Dispones some Lands acquired by him to Abraham Pargilleis eldest lawful Son of that Daughter Iohn Pargilleis his Brother Son and nearest Heir pursues a Reduction of that Disposition as being done in lecto and the Defender alleadged that the Defunct went abroad to Kirk and Mercat thereafter unsupported and the Pursuer replying that he was supported and either Party contending for Preference the one that he walked free of himself and the other that he was supported The Lords considering the advantage to the Party that had the sole Probation would prefer neither but before answer ordained Witnesses to be adduced for either Party concerning the Condition the Defunct was in as to Sicknesse or Health when he Subscribed the Disposition and the manner of his going abroad whether free or supported and now the Lords having Advised the Testimonies by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition and that he continued Sick till his Death It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken six days after the Disposition and that after the same he went three times to Calder and about three quarters of a Mile off and that he was helped to his Horse and from his Horse and that he was helped up Stairs and down Stairs but that he walked a foot unsupported in the Mercat of Calder and up and down from my Lords House being three pair of Buts of rising Ground It occurred to the Lords to consider whether the Sickness proven would have been sufficient not being â—â—orbus sonticus or in extremis or whether the presumption of Health sufficient to leige poustie was enough that he came out to Kirk and Mercat albeit the Sickness remained and whether the probation of the Sickness remaining could take away that presumption and whether his being helped to his Horse and from his Horse or up and down Stairs and his Man holding his Bridle as he Rode to and returned from Calder did infer that supportation
modo by Dissolution The Pursuer answered First That albeit the King or his Officers might quarrel his Right as not proceeding upon Dissolution or any other having their Right upon Dissolution yet the Defender cannot especially seing he hath Homologat the Pursuers Right his Predecessors to whom he is Heir having taken Infeftment thereupon likeas the Pursuer has satisfyed the Kings Interest by giving Bond to the Kings Advocat to hold the Lands Waird of the King in the same way as the Defender would therefore the Advocat hath declared he will not concern himself 2dly the Pursuer having obtained a new Right of the King since the Act of Parliament 1661. the same must be valide to him as to these Vassals who have or shall consent because the exception of the Act expresly bears that such a consent is equivalent as if the Vassal had Resigned in the Kings Hands in favour and for new Infeftment to the interposed Superior and had then taken a subaltern Right of him against which there can be no pretence so that by a Right in the exception it cannot be meaned a perfect Right proceeding upon Dissolution because that would be valide without the Vassals consent but that the Vassals consent being equivalent to a Resignation makes the Right valide without Dissolution Which the Lords found Relevant the Duke proving a sufficient consent but it was not Decided whether Major Ballantines taking Infeftment would import a sufficient consent conform to the exception of the Act so that he might not thereafter return to the King Iack contra Iack Iuly 15. 1669. PAtrick Iack having only three Daughters Margaret his eldest Daughter Married Iohn Dowglas and there is a Contract betwixt Iohn Dowglas and the Tutors of the other two Daughters dividing there Fathers Inheritance in three parts and mutally Disponing the same with Procuratory and Precept and there being a Salmond Fishing holding Waird of the King which fell to Margarets share Iohn Dowglas takes Infeftment upon the Tutors Precept Disponing for the other two that Fishing after his Death the said Margaret takes a Gift of Recognition of the said Salmond Fishing as falling by the Infeftment taken by Iohn Dowglas without consent of the Superior and thereupon pursues Declarator Katharin Iack and Robertson her Spouse and the other Sister pursue a Reduction of the Contract of Division as done by their Tutors in their Minority to their Lesion and in answer to the Recognition alleadged First That this Recognition occurred in the time of the English when Recognitions were excluded and such Infeftments by the Law then in use were allowed 2dly The Infeftment here granted proceeded only upon the Disposition of their Tutors whose acts except in what is proper to the Administration of their Office is void It was answered as to the first that they opponed the Decision in the case of Sir George Kinaired against the Vassals of the Master of Gray by which it was found that Infeftments taken of Waird-lands without the Superiors consent even during the Usurpation inferred Recognition and to the second that the Division among the Daughters was an act of Administration that the Daughters might have been compelled to do It was answered that there is no such Decision produced and that in the case of the Vassals of Gray they did continue in Possession several years after the Kings Restitution and did not take Confirmations but here the said Margaret one of the Sisters who should have taken Confirmation before she had continued Possession cannot have benefit by her own fault and make use of a Gift of Recognition in her own Person proceeding upon her own and her Husbands fault neither can the Division be a lawful act of Administration of the Tutors in so far as they granted them Precepts of Seising to be holden of their Pupil which no Law could have compelled them to do but only Procuratories of Resignation likeas it was Iohn Dowglas fault not to make use of the Procuratory but of the Prccept The Lords found no Recognition incurred but because the Parties might have been troubled if any other had taken the Gift they ordained the other two Sisters to pay their part of the expences of the Gift Mr. Archibald Dennistoun contra Semple of Fulwood Iuly 16 1669. THe Lairds of Fulwood elder and younger and Dennistoun being appointed Overseers by Culgrain to his Daughters the eldest Daughter being Married to Mr. Archibald Dennistouns Son there is a Contract betwixt Mr. Archibald and the three Overseers taking burden for the Daughters by which the Estate of Culgrain and Mr. Archibalds Estate are both settled in the Person of his Son and the Overseers are obliged to cause the Minors and their Curators become obliged to relieve Mr. Archibald of 17000. Merks Mr. Archibald Charges Fulwood upon the Contract who Suspends alleadging that the Clause can only import that he is lyable for his own part but not in solidum seing the Clause bears not the Overseers to be bound conjunctly and severally It was answered that the obligement is not for payment of a Sum which is divisible but for doing a Fact which is indivisible viz. the Minors being become bound to relieve which is all one as if the Overseers had been obliged to cause the Minors Subscribe a Bond of releif which could not divide but would have obliged every one of them in solidum It was answered that the result of the obligation being releif of Sums which are divisible the obligation at least the Damnadge and Interest succeeding in place thereof ought to be devisible for the obligation being factum alienum imprestable to the Overseer and the third Overseers that refuses to concur being the Chargers own Brother there is no reason that the Overseers who had no Office or obligement but were only Overseers which is not nomen juris should be lyable for the Chargers own Brother his third part thereof The Lords found them only lyable pro rata Barclay contra Barclay Iuly 20. 1669. THe Laird of Towy having only one Daughter Elizabeth Barclay and his Lands being provided to Heirs Male Dispones his Estate to his Daughter In which Disposition there being not only a Procuratory of Resignation but a Prcept of Seising the said Elizabeth was Infeft upon the Precept and being an Infant her Friends thinking it might infer Recognition took a Gift of the Recognition and now pursues Declarator thereon against the Tutor of Towy Heir Male and Captain Barclay as pretending Right by Disposition to the Estate It was alleadged for the Defenders Absolvitor because the Disposition granted by umquhile Towy to the Pursuer his Daughter was granted on Death-bed at the least it was retained by the Defunct and never delivered till he was on Death-bed and thereby it is null and cannot infer Recognition because the Law upon just consideration that Parties are presumed to be weak in their Minds and easily wrought upon after contracting of the Disease of which they Died has
Iohn Eleis contra Inglishtoun Eodem die CRichtoun of Crawfordstoun having only one Daughter Disponed his Estate to Iohn Brown of Inglishstoun in contemplation of the Marriage betwixt him and Crawfordstouns Daughter and to the Heirs-male of the Marriage which failzying to certain other Heirs Substitute bearing a power to Burden the Estate with 5000. Merks to whom he pleased and containing a Clause that the Disposition should be valide though not Delivered in his Lifetime and after Inglistouns Marriage Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun and the Heirs of the Marriage which failzying After which words there follows a blank of a Line and a half and the Sum is payable at the first Term after Crawfordstouns Death the intent of which Bonds seems to have been that thereupon Apprizing might proceed to Denude the Heirs of Line and to compel the Superior 〈◊〉 Receive Inglistoun Thereafter Crawfordstoun made a second Tailzy wherein Inglistouns Son with his Daughter being then Born is Feear and several Members of the Tailzy altered and after that he made a third wherein his Daughter Inglistouns Wife is Feear and the Substitutions much like the former After his Death these Papers being Exhibit at the Instance of two of his Daughters Heirs of Line Married to Mr. Iohn Eleis and Alexander Tran upon a Process ad deliberandum and being craved up again from the Clerks by the Tutor of Inglistouns Son It was alleadged for the Heirs of Line that the saids Writs could not be Delivered up because they not having been Delivered by the Defunct in his leige poâ—stie could not prejudge his Heirs of Line and albeit his first Disposition contained a dispensation for not Delivery which ordinarly is accounted sufficient yet where it appears the Defunct altered his purpose both by the posterior Dispositions of a different Tenor and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual and there is no pretence for Delivering the Bond and the two other Dispositions seing they want that Clause It was answerd that the Dispensation with Delivery is in all cases equiparat with the Delivery it self and that the remanent Writs ought also to be Delivered though they bear not that Clause because the Heirs of Line being absolutely excluded by the first Disposition they have no interest to quarrel the other Dispositions and albeit it the posterior Dispositions were to different effects the want of Dispensation therein might make them ineffectual yet where they are but qualifications of the first Tailzy they are accessory thereto and must be Delivered therewith seing the Defunct so long as he keeped the Writ in his own Hand might still alter the same at his pleasure It was answered that the posterior Dispositions wanted the Clause reserving power to the Defunct to leave to whom he pleased the 5000. Merks and it is like he hath left it to his other Daughters and the Bond may be made use of to overturn his whole intent and alter the Tailzy The Lords found that seing the first Disposition contained a Dispensation with Delivery and the rest being accessory thereto and only altering in somethings the Tailzy but still to the first Heir of Tailzy being the Son of Inglistouns Marriage they ordained them all to be Delivered up and the Bond also but with this Declaration that the Provision anent the 5000. Merks in the first Disposition should be holden as repeared in the rest that the Heirs of Line might be in no worse Case then by the first and that the Bond should only be made use of according to the Substitutions and Clauses of the Tailzies Crawford contra Anderson Iuly 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow sometime thereafter William grants Back-bond Declaring the Disposition was upon Trust to the behove of Fleemings Creditors Young being one of the Creditors uses Inhibition and Apprizing against Fleeming and is thereupon publickly Infeft after which William Anderson makes payment to the other of the Creditors the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands Anderson excepts upon his prior Infeftment from Fleeming the common Author upon the said Disposition Crawford replys upon the Back-bond that the said Infeftment is on Trust to the behove of Fleeming Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him and next to the behove of Fleemings Creditors and condescends and instructs that he has made payment to several of these Creditors so that payment made by him bona fide must give him Right to the Trust pro tanto and any Inhibition or Infeftment at Youngs Instance was only against Fleeming and not against Anderson against whom there was never any Action It was answered that the Trust being for payment of Fleemings Creditors cannot be interpret at the option of Anderson which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors but it must be understood to pay the Creditors legitimo modo and not to make voluntar payment to these who had done no Diligence and prefer them to these who had done Diligence and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming yet Anderson who was Intrusted for Fleeming might and ought to have known the same by searching of the Registers appointed for publication of Rights and if he had neglected the same Sibi imputet for he being Trusty for Fleeming could no more prefer Fleemings Creditors then Fleeming himself could do The Lords Repelled the Defense and Duply and found that voluntary payment made by Anderson to Fleemings Creditors after the Inhibition or publick Infeftment of other Creditors did not give him any Right by his Infeftment in Trust to exclude the more timeous Diligence of the other Creditors Street contra Masson and Lord Tarphichen Iuly 27. 1669. IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands publickly holden of the Superior and being a Merchant there was a correspondence betwixt him and Mr. Street and other London Merchants whereupon he gave them Bond mentioning to be for former Accompts and Provisions betwixt them and thereupon followed an Infeftment of Annualrent The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son as being posterior to his Debt and granted by a Father in defraud thereof The London Merchants raise also a Declarator that the Infeftment granted by Masson to his Son then an Infant ought to be affected with their Debt in the same condition as it were yet standing in the Fathers Person or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son the Father being then in tract of Correspondence and Traffick with these Merchants who
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
or Brybing the Witnesses it is most Relevant and express in Law l. 33. ff de re judicata bearing testibus pecunia corruptis conspiratione adversariorum c. which being pessimi exempli in odium corrumpentis not only are the Witnesses punishable but the Sentence annullable which is confirmed toto titulo Codicis si ex falsis instrumentis and that without regard whether they undertake or Depone falsly or not as is observed by Bartol l. in princ ff de falsis adict l. divans 33. de re judicata Num. 7. and Covaruvias in repet C. quamvis fol. 57. Col. 3. which he attests to be the common opinion and which is likewise attested by Boss. in tit de falsis num 1608. and by Will. 66. com opin fol. 2991. and especially by Hartman tit 15. de testibus observ 16. where he doth expresly maintain that it is not so much a lawful to instruct a Witness excitandae memoriae causa non si subito deprehendatur haesitet titubet in respect any such instruction is subornationis velamentum and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice as may appear per Capell tholos deces 2804. and others And which is likewise the Opinion of Clarus viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant as may appear by Fassum Num. 12 13. quâ—st 53. de exceptionibus quae contra testes opponi possunt And to the last alleadgeance against the Probation by Witnesses that it would infer an endless course of Reprobators It was answered that by the same Reason Reductions might be taken away because the Decreet Reductive might be Reduced and that Decreet by another Reduction without end But Reprobators have every where been Sustained and no such inconvenience ever found neither can it be imagined that every Pursuer of a Reprobator will prevail which this infinite progress must suppose only it may infer that Witnesses in Reprobators ought to be more unquestionable than the Witnesses called in question thereby The Lords found that Reprobators were competent albeit the Witnesses upon Oath Deponed upon their own Hability at the desire of the Party and albeit the Party Protested not for Reprobators seing he was not admitted to compear and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime neither that Member upon their alleadged Infamy unless it were alleadged that they were infamous infamia juris by any Deed which the Law expresly declares to infer Infamy or were declared infamous sententia judicis and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant without necessity to alleadge the Witnesses undertaking or Deponing conform and that in odium corrumpentiâ— without inferring any blemish upon the Witnesses so prompted who consented not or swore falsly and found that Member Relevant of Corrupting the Witnesses by giving or promising of good Deed more than might be suitable to the Witnesses for their Charges but as to the manner of Probation by Oath or Witnesses The Lords superceeded to give answer till a Practique alleadged upon were produced Pringle contra Pringle February 1 1971. PRingle of Soutray having only three Daughters does in his Testament done upon Death-bed Dispone his whole Lands to his eldest Daughter and Constitute her universal Legator with this provision that she pay 10000. merks to the other two Daughters the Disposition as to the Lands being Reduced as being in Testament and on Death-bed the universal Legacy was Sustained to give the eldest Daughter the Right of the Deads part whereupon it was alleadged for the other two Daughters that if the eldest insisted for the universal Legacy she behoved to have it with the burden of the ten thousand merks which was a burden both upon the Land and Moveables and doth no more relate to the one than the other so that albeit the Right of the Land be Evicted the Moveables remains burdened as if a Father should Dispone certain Lands to a Son with the burden of Portions to the other Children albeit a part of the Lands were Evicted the Portions would be wholly due without abatement It was answered for the eldest Daughter that in latter Wills the mind of the Defunct is chiefly regarded not only as to what is exprest but to what is implyed or presumed and here it is evident that the mind of the Defunct was that his two younger Daughters should only have ten thousand merks in satisfaction to all Rights of Lands or Moveables Now seing they have gotten two third parts of the Land which is much better than ten thousand merks It cannot be thought to be his meaning to give them any share of his Moveables also but that the half thereof which was at his disposal should belong to the eldest Daughter without burden Which the Lords found Relevant and declared the same to belong to the eldest Daughter without burden of the Provisions Alexander Ferguson contra Parochioners of Kingarth Eodem die ALexander Ferguson being one of the Prebands of the Chapel-Royal by His Majesties Presentation and Collation pursues the Heretors of the Paroch of Kingarth for the Teinds as being annexed to the Chappel-Royal as appears by the Books of Assumption and three Presentations from the King produced Compearance is made for the Minister of Rothsay who alleadged that he had Presentation to the Kirk of Kingarth from the King and Collation thereupon and so had best right to the Teinds of his Paroch because de jure communi decima debentur pâ—rocho and as for the Pursuer he shews no Right by any Mortification of these Teinds to the Chappel-Royal Neither can he make it appear that ever he or any other Prebander were in Possession civil or natural thereof 2dly Albeit the Prebanders had had a Right the same is now taken off by Prescription because it is offered to be proven that the Minister hath been 40. years in peaceable Possession before the Pursuers Citation which not only takes away the bygones but the whole Right and establishes the same in the Ministers person The Lords found the Books of Assumption and the three Presentations from the King sufficient to instruct the Pursuers Title and found the Defense of Prescription Relevant as to the bygones before the Citation but not to Establish the Right in the Minister or to take it from the Chappel-Royal as to years after the Citation and in time coming in respect of the Act of Parliament providing that the Kings Interest shall not be prejudged by the neglect of His Officers Blair of Bagillo contra Blair of Denhead February 3. 1671. BLair of Bagillo having granted Bond to Blair of Denhead he did Assign the same to Guthrie of Collistoun Bagilio raised Suspension against Collistoun as Assigney in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs to the effect
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
The Pursuer Repâ—yed that the Prescription was interrupted in so far as a part of the Principal Sum was payed within the years of Prescription It was answered for the Defender that the payment being mode to the Daughters of the principal Sum it could have no effect as to the Annualrents preceeding Iean Blairs Death which belonged not to her Daughters as persons Substitute in the Bond but to her Executors so that the Bond might well be preserved as to the principal Sum and yet prescribe as to the Annualrents these being two several Right and stated in several Persons It was answered That the Interruption by payment was sufficient for preserving both Principal and Annual for Prescription being odious any Deed by which the Debitor and Creditor acknowledge the Right within the fourty years is sufficient not only as to the interest of the particular Actors but as to all others who have interest in the same Right as payment of any part of the Annualrent by one Person preserves the whole Right against all the Cautioners and Co-principals though they neither payed nor were pursued within fourty years so payment of any part of the Principal must in the same manner preserve the Right of the Bond as to all Annualrents to whomsoever they belong if they be not fourty years before that Interruption by payment of a part of the principal Which the Lords found Relevant This was stopped on the Lords own consideration without a Bâ—ll from the Parties because by common Custom though Annual had been constantly payed for fourty years yet all preceeding prescribed whereupon it was contrarily Decerned thereafter February 7. 1672. Alice Miller contra Bothwel of Glencorse Eodem die ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack and the Writer and Witnesses of the Tack being Examined upon Oath did Depone that they did not see Alice Miller Subscribe and one of them Deponing that he had Subscribed at Glencorses instigation who told him that he had caused set to Alice Millers Name only one Witness who was Writer and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand The Lords having this Day Advised the Cause found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller and did therefore improve the Minute but found it not proven who was the Forger of the said Alice Millers Subscription Captain Guthrie contra The Laird of Mccairstoun Iuly 25. 1671. CAptain Guthrie having Married Dame Margaret Scot and she dying in Possession of the Lands of Mannehill Laboured by her Husband and her in the Moneth of April Mccairstoun as Heretor of the Land craves the Rent of the Land for that year in respect the Liferenter neither lived till the first Legal Term which is Whitesunday nor till Martinmasse It was answered that by immemorial Custom Liferenters have Right to the Cropt of Lands Sowed by themselves whether they attain to the Term of Whiâ—esunday or not neither were they ever found lyable for any Duty therefore Which the Lords Sustained Robert Baillie contra Mr. William Baillie Iuly 27. 1671. THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William Baillie eldest Son to his Deceased eldest Son is in the first place and to him is Substitute Robert Baillie Lamingtouns second Son and the Heirs of his Body reserving to the said Robert his Liferent from the Fee of his Heirs in case they succeed and failzying of Roberts Heirs to Master William Baillie Lamingtouns Brother Son after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William Baillie on the one part and Robert on the other by which Lamingtoun obliges himself to pay to Robert the sum of six hundreth merks during his Life and Robert Renunces and Dispones to Lamingtoun his portion natural and Bairns part of Gear and all Bonds and Provisions made to him by his Father and all Right he has to the Estate of Lamingtoun or any part thereof and that in favours of this Lamingtoun and his Goodsires Heirs males contained in his Procutry of Resignation Robert Baillie raises a Declarator against Lamingtoun and Mr. William Baillie for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun failzying of this Laird and his Heirs and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun but to no future Right or hope of Succession seing there is no mention either of Tailzie or Succession in the Contract It was alleadged Absolvitor because Robert getting 600. Merks yearly he can instruct no Cause for it but this Renunciation which must necessarly be so interpret as to have effect and so if it extend not to exclude him from the Tailzie it had neither a Cause for granting the six hundreth merks nor any effect thereon It was answered that Robert being a Son of the Family and Renuncing his Portion natural it was a sufficient Cause and though there were no Cause such general Renunciations could never be extended to future Rights or hopes of Succession unless the sum had been exprest Which the Lords found Relevant and Declared accordingly Sir Iohn Keith contra Sir George Iohnstoun Iuly 28. 1671. THe Estate of Caskiben being Appryzed by Doctor Guil Sir George Iohnstoun the appearand Heir acquired Right to the Appryzing in the Person of Phillorth who by a Missive Letter acknowledged the Trust upon which Letter Sir George raised Action against Phillorth to compt for his intromission and Denude himself and upon the Dependence raised Inhibition yet Phillorth sold the Estate to Sir Iohn Keith who to clear himself of the Inhibition raised a Declarator that the Inhibition was null and that his Estate was free of any burden thereof because it wanted this essential Solemnity that the Execution against Phillorth did not bear a Copy to be delivered and that the Executions being so Registrat he being a Purchaser for a just price and seing no valid Inhibition upon Record he ought not to be Burdened therewith The Defender alleadged Absolvitor Because First The delivering of a Copy was no Essential Solemnitie neither does any Law or Statute ordain the same much less any Law declaring Executions void for want thereof and albeit it be the common Stile yet every thing in the Stile is not necessary for if the Messenger should have read the Letters and showen them to the Partie he could not say but that he was both Certiorat and Charged not to Dispone 2dly The Executions bear that Phillorth was Inhibit personally apprehended 3dly The Inhibition comprehends both a Prohibition to the Party Inhibit and to all the Leidges at the Mercat Cross at which the Execution bears a Copy was affixed so that whatever defect might be pretended as to Phillorth this Pursuer
Reductions and Declarators against appearand Heirs not requiring a Charge to Enter Heir in respect the appearand Heir must therein except upon the Defuncts Rights and so behave as Heir Iune 27 1667. Dewar contra Paterson Annus deliberandi Excludeth Citations given within that year here the day of compearance was within the year Ibidem ANNVALRENT was not found due for sums of Money without paction albeit the Money was lent with this provision that failing Heirs of the Creditors body who was very old the Debitor should succeed December 11. 1662. Logiâ— contra Logiâ— Annualrent was found due after Horning albeit the Decreet being Susâ—ended a part of it was taken away yet Annual was found due for the rest Ianuary 30. 1663. Rigg of Carberry contra his Creditors Annualrent was allowed without paction for a Portâ—on left by Legacy to the Defuncts natural Daughter the time of payment of which Legacy was her Marriage which being in her power The Lords would give no occasion to hasten the same but allowed Annualrent in the mean time Iune 25. 1664. Inglis contra Inglis Annualrent was not found due by a Father to his Son for a Legacy left to his Son by his Mothers Father and uplifted by the Father during the time he alimented his Son in his Family December 15. 1668. Windrham contra Eleis Annualrent promised for a time by a Letter was found due in all time thereafter Ianuary 13. 1669. Hume contra Seaton of Menzies Annual of Annual was not found due though expresly obliged to be payed by a Bond beaâ—ing That after each Term the Annualrent if it were not payed should bear Annualrent with the principal which clause was found null and not in the same case with a Bond of Corroboration granted after Annualrents were due accumulating the same Ianuary 26. 1669. Lady Braid contra Eâ—rl of Kingâ—orn APPRYZINGS were found not to be affected by a Bond or a Contract amongst the Appyzers to concur and communicat their Rights as to singular Successors seing the Contracters were then Infeft Iuly 1661. Taâ—lziâ—er contra Maxtoun An Apprizing led before the year 165â— but no Infeftment thereon till after that year was found not to come in pari passu with posterior Apprizings Infeft or Charging after the Charge or Infeftment on the Appryzing before 1652. but it did exclude them wholly December 12. 1666. Sir Henry Hume contra Creditors of Kello An Apprizer was found Comptable â—or his Intromission with such as he Entered in Possession of according to the Rental the Lands gave at his Entry with power to him to give up all defalcations in his Discharge and instruct the same Ianuary 4. 1662. Seaton contra Rosewall An Apprizer was excluded by a prior Infeftment though granted to the Creditors appearand Heir whereby he became Lucrative Successor after this Debt contracted but prejudice to purâ—ue him personally or to Reduce on that Title Ianuary 6. 1662. Mansoun contra Bannerman of Elsick An Apprizer pursuing for Removing and Mails and Duties his pursuit was Sustained only as â—o so much of the Apprized Lands as he should choose worth 8. per cent and to compt for the superplus more than his Annualrent and publict burdens excepting the Defenders House and Mains by the late Act of Parliament betwixt Debitor and Creditor Iune 27. 1662. Wilson contra Murray Apprizers Competing upon the late Act of Parliament bringing in Apprizings since 1652. pari passu was found not to exclude Apprizings before having obtained Infeftment since but that none could come in with him who was first Infeft and payed the Composition till they refounded their shares thereof Ianuary 24. 1663. Graham contra Ross. But also by the Tenor of the late Act the first Apprizers being Infeft in an Annualrent were found to have access to his Annualrent thogh there was no poinding of the ground February 5. 1663. Inter â—osdem An Apprizer was found comptable for the Rents of the apprized Lands during the Debiâ—ors Minority contrary the Act of Parliament 1621. Which was â—mended in the late Act 1641. But in the late Act Rescâ—ssory that was not Revived seing all private Rights by these Rescinded Acts. mâ—dio tempore were Reserved and this had been the Custom for twenty years February 18. 1663. Rosse contra Mckenzie Apprizers Competing the first Apprizer having given the first Charge on the Letters of â—our Forms and before the dayes thereof were expired the Superiour Infefting a second Apprizer the Infeftment was found Collusive and the first Apprizer giving the â—irst Charge and Infeft within a litle time after the second was preferred and the first Infeftment Reduced was still in Possession till now that the Legal was expired not only the bygone Fruits were his own but that he might Redeem within a year after this Sentence seing by the Taciâ—urnity of the Pursuer he was in bona fide to continue his Possession and not to doubt his own Right or Redeem a second Apprizer December 3. 1664. Laird of Clâ—rkingtoun contra Laird of Corsbie An Apprizing within a year was excluded from coming in pari passu with a prior Apprizing in respect the prior Apprizer had before the Act betwixt Debitor and Creditor taken Right to a prior Apprizing without necessity to alleadge that he took the Right to shun the expiring of the Legal of that prior Apprizing or any other necessary Causâ— December 9. 1664. Iohn Veatch younger of Dawick contra Alexander Williamson Apprizers Competing where the first Apprizer being Infeft would possess but a part the Debate being as to the rest betwixt the second Apprizer not Infeâ—t and the third Infeft the Lords preferred the second as needing no Infeftment December 22. 1664. Doctor Ramsay and Hay contra Seatoun Apprizers come in pari passu not before the date of the late Act but from that time both Parties Sums should be accumulate and the Mails liâ—ted proportâ—onally but prâ—ceeding Mails should be imputed in payment of the Expence of the Apprizing Composition to the Superiour and then in payment of the principal Sums Ianuary 7. 1665. Grahame of Blackwood contra Browâ—s An Appriâ—ing being to be led the present Hâ—ritor and Possessors obtained assessors to be joyned to the Messenger that he might stop the Apprizing by production of his Inâ—eâ—tment â—ebruary 3. 1665. Sir Iohn Fletcher Supplicant An Apprizing ordained to be allowed and Registrat after the Debitors death and long after the sixty dayes were past from the Date of the Apprizing and that upon Supplication without Citation in respect it was found that the Apprizing Registrate Quandocuâ—que would be preferred to others not sooner or more orderly Registrate Iune â— 1665. An Apprizer pursuing for Mails and Duties was excluded till he â—atisfied the Superiour for a years Rent he being now ready to Recâ—ive him albeit he â—as Charged before and did not obey Iuly 22. 1665. Iohnstoun contra Tennents of Auchincorse An Apprizing being lost and a new Extract thereof being Subâ—cribed by the Clerk of the
contravention or one made up of all at the conclusion of the cause Iuly â— 1664. Earl of Airly contra Mcintosh A CREDITOR personal was found to have no interest to compeat to exclude another Creditor alleadging his debt payed Iuly 24. 1662. Shed contra Gordoun and â—yle A CROPT of Corn was â—ound not to be as a part of or accessory to the Ground or as sata solo cedunt solo so that after Possession attained by Removing against a violent Possessor warned the cropt on the Ground was found not thereby to belong to the Heretor entering even as to that part thereof which was sown after the Warning but as to what was sown after the Possessor was dispossed by the Removing and his Goods off the Ground the corn was found to accresce to the Heretor by paying the expense of the Seed and Labourage as Eatenus locupletior factus February 22. 1671. Gordoun contra Mcculloch IN CRVIVES no necessity was found for the stream to be continually free besides the Saturdays slop but that the same is commonly in desuetude and particularly in the Cruive in question notwithstanding that it be speciall in the Act of Parliament Iuly 29. 1665. Heretors of Don contra Town of Aberdene A CVRATORS Decreet obtained against him by a Minor for Liberation of the Curator from his Office upon consent of the Minor and his alleadged irregularity was â—ound not to Liberate that Curator from his Office even for Omissions after the Decreet Iuly 21. 1664. Scot of â—road-meadows contra Scot of Thirlestoun But with consideration of the irregular forcible Acts that he should not be lyable therefore but liberat pro tanto vide Minor Ibid. Curators being chosen three in number or any two of them the Mother being sine qua non and she being dead the Pupil was found sufficiently authorized by the other two he appearing judicially and acknowledging the same Ianuary 4. 1666. David and Andrew Fairfouls contra Binnâ—â— Curators or a Father as lawful Administrator authorizing Minors or Children to their own behove being Caâ—tioners for or with them was found null December 7. 1666. Sir George Mckenzie contra Fairholme CVSTODY of Money was found to liberate the Keeper where his whole means were sent for safety to a Garison and there lost and he being required to deliver the Money in custody declared that it was there and the owner might have it for sending for it without special probation as to the Money in question he giving his Oath in Supplement that it was there and was lost Iuly 19. 1662. Fiddes contra Iack vid. Novemb. 16. 1667. Whitehead contra Straâ—toâ—n DAMNAGE of a Tenement by the fall of a Neighbour Tenement was found competent against an Appryzer of a Liserent of the fallen Tenement possessing thereby February 16. 1666. Hay of Knockcâ—ndie contra Litlejohn Renewed Ianuary 13. 1666. the ruinousness of the fallen House being Proven though no Requisition to Repair it Damnage done to Victual Embarqued for the use of Merchants by the fault and negligence of the Skipper was found not to oblige the Skipper and Owners to take the Victual and pay the price but only to pay the damnage seing the Victual was not wholly corrupt but remained in Specie February 19. 1670. Leslie contra Guthrie DATE of a Bond wanting as to day moneth and year was found not to annul it seing it bear in the Body Annualrent from such a Term in such a year last by-past which supplyed the date as to the year Iune 15. 1662. Grant contra Grant of Kirkdail Date of a Discharge in a Merchants compt Book being â—nstructed by Witnesses and Adminicles was found to prove against the Merchants Assigney Ianuary 9. 1663. Skeen contra Lumsdean Date being wanting in a Writ was sustained to be astructed by a Witness insert that it was anterior to an Assignation whereupon it was admitted as a compensation against the Assigney Iune 29. 1665. Thorntoun contra Milne Date of a Writ being wanting was found not to annul it the party referring the verity of the Subscription to the Subscribers oath which was allowed with power to qualifie if it was undelivered or in minority Iuly 7. 1666. contra Duncan Date of a Writ being false was found not to infer Falsehood of the whole or nullity thereof where the Witnesses insert proved the verity of the Subscription February 23. 1667. Laird of May contra Ross. The date of a Writ was not quarrelled by the Lords as false albeit it was not Subscribed the day that it bear in respect there was a Writ of the same Tenor truly subscribed that day but being a missing the Granter a long time after Subscribed another of the same Tenor and date and the first being found and both produced in Process the user abode by the first simply and by the last as to the verity of the Subscription but not of the date which was so insert for the reason foresaid Iuly 10. 1669. Gardner contra Colviâ— DEATH of a party was found instructed by 18. years absence out of the Countrey and repute dead and a Letter produced wâ—itten by a Comrad in the War bearing that he was dead to Sustain an Adjudication upon a Bond granted by the next Heir which was to his own behove February 18. 1670. Lowrie contra Drummond DEATH-BED was not Sustained to Reduce a disposition by a Father to his Son of a Sum as prejudicial to his Heir seing by Contract with his eldest Son he reserved that power to burden the Estate to any he pleased though it bear not on death-bed yet that was not excluded nothing being there done but the designation of the Person Iune 28. 1662. Seatoun of Barns contra his Brother Death-bed was found relevant to reduce a Disposition and Infeftment of Lands to an Heir female and of line in prejudice of a Brother and Heir-male who was provided to the Lands by the Disponer with a clause with power to him to alter during his Life which was found not to extend to death-bed though he should have been proven in soundness of mind as contrary to the presumptio juris de jure that persons on death-bed are weak February 25. 1663. Hepburn of Humbie contra Hepburnâ— this clause not being in the Writ etiam in articulo mortis or on death-bed Death-bed and a Testament was found equivalent albeit the Testament was made in leige poustie and so no provision therein prejudgeth the Heir December 14. 1664. Lady Colvil contra Lord Colvil Death-bed was found not Relevant to hinder a Husband to provide a Wife with a Ioynture she having no Contract of Marriage nor competent provision nor any Terce he having only Tenements in Burgh of which no Terce is due but the Lords modified the Provision near to a Terce February 22. 1661. Rutherfoord and Pollock contra Iack. Death-bed was found not competent by way of exception or duply Ianuary 12 1666. Seatoun and the Laird of Touch contra Dundas Death-bed was found
the Ground whereby they would be preferred to the Appryzing Iuly 8. 1671. Margaret Scrymzour contra Earl of Northesk By this Decision the Accumulation of Annualrents by the voluntar Disposition was Evacuate DECLARATOR of the expyring of a Reversion upon a clause irritant was found null summarly without Reduction in respect the Decreet bear not the Production of the Instrument of Requisition whereupon the irritancy fell although the Instrument was now produced and the party long in Possession by vertue of the Decreet and albeit the Requisition was expresly libelled upon and that it seemed to be the Clerks omission in not mentioning of it in the production February 22. 1671. Piâ—cairn contra Tennents DECLARATOR OF ESCHEAT was sustained without calling all parties having interest at the Mercat Cross though it was a part of the Style of the Summons in desuetude Iune 23. 1666. Masson contra DECLARATOR OF WARD AND NONEENTRIE should only be pursued before the Lords of Session not before the Exchequer Iune 14. 1665. His Majesties Letter Recorded in the Books of Sederunt DECLARATOR OF THE NVLLITIE of Bonds and Rights to Creditors by a Feear in a Tailzie with a clause de non aliâ—nando was Sustained without the form of a Reduction or Production of the particular Rights Ianuary 21. 1662. Viscount of Stormount contra creditors of Annandale In a Declarator of Property the Defender was not admitted to propone a Nullity in the Pursuers Right or that certification was granted against his Authors Seasine even at the Defenders instance unless the Defender alleadge a better Right Iuly 10. 1662. Lord Frazer contra Laird of Phillorth A DECREET of Removing for not finding caution in absence was found null by Exception in respect the Title Libelled on was not produced but the Infeftment of another Person of the same name fraudfully mentioned in the production so that it was not Sustained as titulus bonafides to give the Possessor the Fruits Iune 21. 1671. Neilson contra Menzeis of Enoch A Decreet being stopped on a Bill was found not to be recalled but only the Extracting thereof to be forborn till the Party were heard on the Grounds of the Bill and that though it lay over several years it needed not wakening Iuly 1. 1671. Broadie of Lethem and the Laird of Riccartoun contra Lord Kenmure A DECREET ARBITRAL was found null as not being within a year of the Submission though it had no time but a power to the Arbiters to meet at their convenience and prorogat but did not prorogat the same February 24. 1665. Mcgregor contra Menzeis A Decreet Arbitral was sustained without Submission in Writ it being proven by the Parties Oath that he so submitted and by the Arbiters Oath that they so decerned though both the Submission and Decreet were only verbal the matter being but of 200. merks February 7. 1671. Hume contra Scot. Here the matter was a Bond of 550. merks Suspended and determined to 200. merks DECREETS OF INFERIOVR COVRTS were found not to be taken away upon Iniquity though it be instantly verified by the Decreet by way of Suspension without Reduction Ianuary 24. 1662. Ker contra Lord Rentoun A Decreet of an Inferiour Court was not Reduced simply because Advocation was produced before Extracting being after Sentence but was Reduced because the Advocation was produced before eleven hours which was the ordinary hour of beginning to sit but the Sheriff sat that day an hour before ordinary which the Lords found sufficient presumption that it was of purpose to prevent the Advocation Iuly 10. 1662. Laird of Lambertoun contra Hume of Kaimes A Decreâ—et of an inferiour Court was not Sustained as in â—oro where a Term was taken by a Procurator to prove a Defense without a Mandat or Writ produced that might inâ—er the same November 24. 1665. Chalmers contra Lady Tinnel A Decreet of an inferiour Court was found null for want of Probation bearing only that the Defender compeared and conâ—essed the debt without proponing any other alleadgeance or deâ—ense and not Subscribing his acknowledgement Iuly 19. 1665. Guine contra Mcken A Decreet of an inferiour Court upon compearance was not found null by Suspension without Reduction though it had visible Nullities and was a small matter Inter pauperes November 21. 1665. Baxters in the Cannongate contra A DECREET OF SESSION was Reduced as null being ultra petita Iuly 21. 1666. Waison contra Miller A Decreet of Session in foro whereby in a Suspension a sum being alleadged paid not instantly verified the Letters were found orderly proceeded conditionally if any thing were produced by such a time it should be received and was not produced after which the Lords would not admit it being now produced in a Reduction of an Appryzing of the said Decreet now in the hands of a singular Successor Iune 16. 1664. Laird of Tillieallan and Condie contra Crawfoord A DECREET OF PARLIAMENT was taken away by double poynding without a Reduction the same being referred to the Lords by the Parliament upon Supplication on this Reason that it was pronunced against a Forefault person alter his death without calling the Kings Officers Iuly 14. 1665. Earl of Argile contra Mcdâ—wgal of Dinolich and Raca A Decreet of Parliament Rescinding a dishabilitation of the Children of Forefault Persons without Citation was Sustained there being no Citation of the Children to the Dishabilitation nor Restitution by way of Grace but in Iustice the Children being Infants incapable of the Crime February 24. 1665. Sir Robert Sinclar contra the Laird of Wedderbâ—rn DELIVERY Vide Chyrographum December 13. 1666. â—â—net Thomson contra Stevinson Delivery of an Assignation was not found necessary to validate the same being granted by a Defunct to his near Relation though not in his Family though it bear not a Clause to be valide without delivery seing it bear a Reservation of his Liferent and a power to dispose evidencing his purpuse not to deliver the same and so importing the Writ to be valide without delivery Delivery of three Dispositions in Tailzie to a Daughters Son was found to be implyed by a Clause in the first dispensing with delivery and seing the Substantials of the rest were the same with the first and only qualified the same conform to the reserved power in the first they were all Sustained though the other two had no dispensatory Clause but so that what was in the first for the benefite of the Heir should be holden as repeated in the rest that by the rest the Heir might not be in a worse case Iuly 23. 1669. Elleâ—s contra Inglesâ—â—â—n Delivery of Bonds of provision to Children is not presumed to have been at or near the date but must be proven to prefer them to posterior Creditors Iuly 22. 1668. Iohnstoun of Shâ—ins contra Arnot DEPOSITATION of a Writ was found probable by the Notar and Witnesses insert where the Writ was not produced by the Party in whose favours it was principally
the rest of his children or else to pay a Modification for his aliment albeit the Father was indigent seing the Son had no Means or Calling to aliment himself Ianuary 13. 1666. Dick contra Dick. A Father was sound to be lawful Administrator to his Son in his Family not only in his Pupillarity but Minority as curatorâ— honorarius not lyable to oâ—â—mission or exclusive to other Curators but deeds done without his consent were found null albeit his Son resided not in his Family but followed the Law living still on his Fathers charges and having no Calling or Patrimony to maintain himself neither was his Fathers Subscribing with him found a sufficient authorizing of him seing he subscribed with him as Cautioner for him December 7. 1666. Menzeis contra Fairholme A Father taking a Bond blank in the Creditors Name and filling up his Brothers Name therein and obtaining an Assignation from him to his daughter was not found as a Bond of Provision Revockable by the Father in respect the Bond was Registrate in the Brothers Name November 20. 1667. Executors of Trotter contra Trotter A Father was not found obliged for Annualrent of a Legacy uplifted by him belonging to his Son as being his Tutor of Law the Son being Alimented by the Father and in his Family December 15. 1668. Windrham contra Eleâ—s A Father granting Bond to a Bairn in satisfaction of her Portion Natural was found thereby to increass the Bairns part of the rest of the Bairns and not to apply that Bairns part to the Heir Executor or universal Legator as they who were obliged for the Bond of Provision comprehending the Bairns part February 17. 1671. Megil contra Viscount of Oxenfoord A FEW containing a clause irritant expreslyâ— to be null upon the Failzle was found not to be purged at the Bar where offer of payment was made in which it differs from a Feu not having that clause February 13. 1666. Laird of Wedderburn contra Wardlaw Feus of Ward-lands granted before the Act of Parliament 1666. against Feus was found valide albeit granted by these who held Ward of Subjects without consent of their Superiour Iune 24. 1668. Steuart of Torrence contra Feuers of Ernoch A Feu was found to be Renunceable by a Feuer to free him of the Feu-duty albeit it was constitute by a muâ—ual contract obliging the Feuer and his Heirs to pay the Feu-duty yearly seing by a Back-bond of the same date he was allowed to Renunce when he pleased which was found effectual to take away that personal obligement being extrinsick to the Feu though in the Feudal Contract against a singular Successor in the Feu February 1. 1669. Brown contra Sibbald A FEW-Dâ—VTY was found personally to affect a Liferenter for these years only whereof she lifted the Rent Iuly 19. 1665. Windrham contra the Lady Idingtoun FOREFAVLTVRE of a Paricide as having killed his own Mother being gifted by the King and Infeftment thereon was found to have no effect unless there had been a doom of Forefaulture pronunced by the Iustices but not upon the ordinary course against absents declaring parties Fugitives for not underlying the Law which can only reach their Moveables Iuly 30. 1662. Zeaman contra Oliphant Forefaulture having with it dishabilitation of the Forefault persons Children declaring them incapable of Lands or Estate in Scotland whereby the Sons Estate fell in the Kings hand and was disponed to a donatar who set Tacks and the Son being restored by Sentence of Parliament as an Infant not accessory to the Crime The Infeftment and Tack thereon were found to fall without calling the Persons interressed before the Parliament notwithstanding of the Act 1584. Prohibiting Restitutions by way of Reduction and declaring Rights granted medio tempore by the King to be valide which was not found to extend to dishabilitation of the Children but to the principal Forefalture February 24. 1665. Dowglas and Sinclar her Husband contra the Laird of Wedderburn Here both the dishabilitation and remission thereof proceeded without citation Forefalture and five years possession of the Forefalt person before the Forefalture makes a valide Right notwithstanding of the posterior Act of Parliament for registration of Seasines and Reversions c. Yet interruption within the five years was found to elide the same by Inhibition and granting a new Corroborative Right especially where citation was used immediatly before the five years albeit the corroborative Right was post commissum crimen Iuly 23. 1666. Earl of Southesk contra Marquess of Huntly Forefalture and five years possession was found not Relevant by exception or reply without a reâ—our by an Inquest Iune 13. 1666. Hume contra Hume Forefalture gives the King or his Donator five years Rent of any Land the Forefalt person was in possession off the time of the Sentence whether by Tack or not Ianuary 24. 1667. Inter eosdem In Forefalture a donatar was found excluded by Appryzing at the instance of the Creditors of the Forefalt person who had comprized before the committing of the Crime and had charged the Superiour after the crime but before the Process of Forefalture Iuly 6. 1667. Creditors of Hume of Kâ—llo contra Hume The Donatar of Forefalture pursuing Removing was found not to be excluded by an Inâ—eâ—tment on an Appryzing granted by the King being then immediate Superiour before the Gift which was not found equivalent to a Confirmation but past in Exchequer of course without notice December 9. 1668. Earl of Argile contra Stirling Forefalture was found to exclude a Creditor founding upon a clause in the disposition made to the Forefalt Person by his Father reserving a power to himself to affect and burden the Lands disponed by Wodset or Annualrent for such a sum though the Father had granted a Bond to the Pursuer declaring the sum to be a part of the Reservation seing there followed no Infeftment by Resignation or Confirmation by the King Iuly 12. 1671. Learmoâ—th contra Earl of Lauderdail Forefalture Vide Gift Hague contra Moscrop and Rutherfoord FRAVD of Creditors being insisted on to Reduce an additional Ioynture after the debt appryzed on the Liferenter offering access to the Appryzer for his Annualrent and to be totally excluded if it were not Redeemed within the Legal it was Sustained Relevant here the Husband was neither bankrupt nor insolvent but there was no ready execution because of the additional Ioynture February 10. 1669. Lady Greenhead contra Lord Lour Fraud of Creditors upon the Act of Parliament 1621. was not found Relevant by Reply without Reduction though of a disposition by a Father to a Son in a small matter Iune 19. 1663. Red contra Harper Fraud of Creditors was not inferred by a clause in a Contract providing a Ioynture to a Wife with condition of restricking her self to a part that the superplus might belong to the Bairns for their Aliment the whole Ioynture being only proportionable to the condition of the parties November 16. 1665.
as having bought the Oxen in which case Sentence was found necessary before the possessors were dispossessed Iuâ—y 7. 1671. Strachans contra Gordouns STIPENDS of Ministers affect the Teinds as a real burden and all intrometters even these who buy as Merchands buying the whole Teind of a Mans Land for a year so that they cannot pretend payment made to the Heretor bona fide seing they should know that real burden Iune 24. 1662. Vernor contra Brown Stipends quoad Intrants were found to divide in two Terms that the Intrant before Whitsondâ—y hath â—oth Terms but after Whitsonday and before Michalmass only one Term Iuly 24. 1662. Wâ—yms contra Cunninghame Stipends were not found to burden and Heretor where there is a Liferenter living Iune 24. 1663. Menzeis contra Laird of Glenâ—rchie Stipend of a Minister reponed shortly after Michalmass as having Presentation Collation and Possession before and wrongously put out was found not to prefer him to that years stipend against the lncumbent possessing and serving the Cure 〈◊〉 Michalmas bona fide Iuly 9. 1663. Kirkaldy contra Balcanquel A Stipend whereto a Stipendiar was presented at Lambass and served from thence and was admitted shortly after Michalmass reached not the whole stipend but the half though the Presentation was before Michalmass and the actual service seing the Admission was shortly after Iune 7. 1664. Hay contra Collector of Vaccand stipends A stipend was found to affect the whole Teinds unbought where there was not a Locality and so the Minister might take himself to any Hereâ—or for his whole free Teind and not pro rata without prejudice to him to pursue for Relief December 3. 1664. Hutcheson contra Earl of Casâ—â—ls A Stipend was found instructed by seven years possession without any Title in Writ so as to give a possessory judgement November 25. 1665. Petrie contra Mitchelson A stipend was found to belong to a Minister Transported in Ianuary who continued preaching till April and not to his Successors who was presented before Whitsonday but not admitted till Lâ—mbass none compearing for the Collector of the vaccand stipends Ianuary 26. 1670. Mcquâ—en contra Marquess of Dowglass and Purves STOLLEN GOODS were â—ound recoverable by the owner by warrand from the Sherifâ— summarly without citation of the possessors though they had peaceably possessed the Gooods four moneths in that pleugh unless they had acquired possession by an onerous Title Iuly 7. 1671 Strachanâ— contra Gordounâ— and others Vide Spuilzie SVBMISSION betwixt Commissars to the Bishop without any determinat Ish or time determined to be filled up or blank but generally referring all controversies that should arise to the Bishop was found valide and not determined by a year but a Term was affixed to determine what differences are now occurring February 3. 1669. Bosewel contra Lindsay of Wormisâ—oun SVBSTITVTION Vide Clause SVCCESSOR LVCRATIVE was not inferred by a Disposition by a Father to a Son having an elder Brother living or so presumed as lately before gone out of the Countrey and so not then alioqui successurus February 28. 1662. Hamiltoun contra Mâ—farlane of Kirktoun Successor lucrative being alleadged by a Disposition of Land by a Father to his Son in his contract of Marriage for a Tocher payed to the Father and debts and Bairns Portions far within the value of the Land he was not found lyable in solidum nor yet the pursuer put to a Reduction but the passive Title was sustained personaliter in so far as the onerous Cause was less then the ordinary price at that time with annualrent since the intenting of the Cause Iune 17. 1664. Lyâ—n of Muâ—resk contra 〈◊〉 Successor Lucrative was not inferred by a Disposition being only to a Nephew the brother being alive who was not â—ound alioqui successurus as in the case of an Oye November 22. 1665. Scot contra Bosâ—wâ—l of Auchmâ—eck Vide Lucrative Successor A SVMMONS whereof the Executions appeared visibly new and the user would not abide by it was found not to be transferred but whether an Inhibition raised on that summons would thereby fall or if warrand might be granted to use new Executions on that Summons though year and day was past and that by special priviledge to validate the Inhibition was not decided Ianuary 12. 1665. Wilson and Callender her Spouse contra Summons not being execuâ—e within year and day from the date thereof no process was sustained thereon Iuly 22. 1665. Row contra Viscount of Stormont Summons on an Assignation libelled at the Assignays instance was not sustained seing the date of the Assignation was posterior to the date of the summons albeit the Cedent concurred Novembâ—r 15. 1666. Abâ—rcrombâ—e contra Andersons A SVPERIOR not being called to a Cognition of Marches by Arbiters or legally cited doth not annul the same but it is but prejudice to the superiour when the Fee shall be in his hand February 8. 1662. Lord Torphichan contra A Superiour by receiving an Appryzer was found not to derogat from the Right of Ward in the Superiour though he made no reservation seing it was a necessary Act for him to receive Iuly 19. 1664. Hospital of Glasgow contra Campbell A Superiour bound in absolute warrandice against Ward having a gift of his own Ward to his own behove was found not to distress his Vassals thereby farder then for a proportional part of the composition and expenseâ— February 15. 1665. Boid of Penkil contra Tennents of Carsâ—uth A Superiour was decernâ—d to receive an Adjudger though the superiour himself had appryzed and alleadged a better right but the Infeftment to be salvo jur◠〈◊〉 sâ—o Iuly 4. 1667. Chein contra Christie A Superiour giving a disposition of his Vassals superiority reserving their property and which disposition bear that the Aâ—quirer should hold of the superiour himself The said disposition with the Infeftment thereon was found null as interponing the Acquirer betwixt the superiour and his vassal but was sustained as a gift of Non-entry in respect it bear an assignation to all the casualities of the superiority and the general declarator thereon was found to extend to the feâ—-duties after citation Ianuary 30. 1671. Dowglas of Kâ—â—head contra his Vassal A Superiour being charged to receive an Adjudger was â—ound to have his option either to receive him for a years rent or to pay his sums getting assignation to the adjudication but â—o that the Land should be redeemable from the superiour for the sums princâ—pal and annualrent contained in the adjudication without any sum for composition of Entry and that the adjudication was in this as an appryzing by the 36. Act King Iames 3d. Iune 10. 1671. Scot of Thirlâ—stane contra Lord Druâ—laâ—rig SVPERIORITY of Kirk Lands annexed to the Crown Anno 1633. reserving the Feu-duties to the Lords of Erection who consented to the surrender was â—ound not to be a ground for the Vassal to force the superiour to instruct his consent but that it is presumed Iuly