thereupon the half of the Estate To see the Decreet Jus Facultatis ATtendendum an quis aliquid faciat jure facultatis an jure servitutis Facultas enim non minus aliis quam nobis patet quia usus qui alii magis ex occasione quam jure conting it Servitus non est nec in eo temporis Diuturnitas quidquam prodest nisi accesserit prohibitio praescribentis patientia ejus contra quem praescribitur Jus Fluviat p. 756. N. 71. sequent Personal Faculty A Person giving a qualified Right reserving Liferent and a Power to dispone Quaeritur If that Faculty may be comprised as a Personal Reversion Quae Facultatis sint ALiqua Dicuntur esse facultatis quorum Libertas a Jure publico permissa est quae non pariunt jus deducibile in Judicium hoc casu nec nos contra alios praescribimus nec alii contra nos Exemplum est in Leg. viam 2da de via publica Aliud Exemplum est in facultate privata quae nullam antecedentem habet causam obligandi ut si Rusticus sua sponte nulla praecedente causa per multos annos Domino certis temporibus capones attulit ex hoc actu merae facultatis nulla oritur Domino actio Quomodo intelligendum Facultati non praescribi ALiqua dicuntur esse Facultatis ad acquirendum novum Jus vel novam actionem vel etiam ad eam Conservandam atque ita pariunt Jus deducibile in judicium Et hoc jus licet sit in libera potestate acquirere volentis non tamen est in potestate illius contra quem acquiritur vel conservatur ut recusare posset Sic adire haereditatem est merae facultatis tamen tollitur praescribitur spatio 30 annorum ergo juri offerendi reluendi praescribitur Hering de Molend quaest 21. N. 17. sequen Jus publicum tribuit cuivis de Populo ut uni ex multis nec privative ad alium etsi ad singulos inde aliquid commodi perveniat Inde illud quod dicere solent Facultati non Praescribi Dicitur de his quae à natura aut publico Jure tribuuntur itaque quocunque tempore nemo praescribit ut qua ierit in publico nullus alius commeet etsi nunquam ea commearit Ea quae de tali facultate dicta sunt non recte Traducuntur ad ea quae proprii privati cujusque Juris sunt id enim Jus est quod ad privatum quemque pertinet privativé ita ut non ad alium Omni siquidem Juri aut facultati quae competit privato cuiquam privativé potest praescribi Idem Ibid N. 20. Faculty reserved to dispone IT being ordinary that a power is reserved by these who Dispone Lands especially to their Friends to Redeem or Dispone or Burden at any time dureing their Lifetimes Quaeritur Whether Lifetimes should be understood civily during their Liege Poustie Item Quaeritur If the Receiver of the Disposition be Dead and the Lands in Non-entry whether the Disponer may notwithstanding Dispone and resign by vertue of the said Power Ratio Dubitandi The said Faculty is upon the matter a Heretable Commission and Procuratory which cannot be Execute post mortem mandantis and there is no person that has the Right Established in his person so that it may be resigned Item If the Lands be in Non-entry and Ward will the Resignation by vertue of the said Faculty determine and put an end to the foresaid Casualities in prejudice of the Superior Ratio Dubitandi The Defunct by whose Decease they accrue was the Superiors Vassal And though the Disponer has the same power yet he should have used it debito tempore while the Vassal was on Life and before the pursuer had jus quaesitum On the other part the said power is of the nature of a Regress so that quocunque tempore as in the case of regress Re-entry may be desired by vertue of the said Faculty A Charter being to be granted to a person conform to the said power That Clause Quaequidem pertinuerunt what way it is to be conceaved and if mention should not be made of the person who is Infeft for the present though he be not the person to whom the Right was Disponed with the said Power But either an Heir or singular Successor If the Faculty to Dispone be not upon the matter a Reversion materially and as to the effect of the same so that the person having the same may Dispone albeit he has not jus in re And albeit the Heretor be either Dead or Forfaulted As an order may be used against an Appearand Heir or against the King or his Donator in the case of Forfaulture or ultimus Haeres A Person who had the Faculty foresaid having by vertue thereof Disponed but deceasing before Resignation Quaeritur What way the Disposition shall be made effectual seing the Faculty was personal to himself Fee WHen by a Contract of Marriage a Sum is to be provided to a Husband and Wife in Liferent and to the Bairns in Fee Which FailÈieing to the Father and his Heirs Quaeritur Before there be Children where is the Fee And if it be not fit to take it to the Father to the use and behoof of the Children which FailÈieing to himself and his Heirs When it is intended that by Contract of Marriage the Parents should be only Liferenters and that certain Sums should be provided to the Children so that they do not represent them Quaeritur What way the Fee can be provided to the Children that are not in being Answer The Father may be infeft in Liferent for himself and in Fee for the use and behoof of his Eldest Son and his Heirs Which Fee is to be to the Father and his Heirs to the use foresaid And they are to be obliged upon the Existence of a Son to denude in Favours of him and his Heirs By Contract of Marriage betwixt Knockdaw Sir John Kennedy and Gilbert Kennedy of Girvanmayns The said Sir John having married the said Gilbert's Daughter The said Gilbert's Lands and Estate are disponed to the said Sir John and his said Spouse and the Heirs betwixt them which failÈieing to such of the said Gilbert's other Daughters as he should at any time appoint which failÈieing to the said Sir John's Heirs and Assigneys whatsomever and now the said Sir John being deceased and having a Son of the Marriage Quaeritur Whether the Fee did belong to him so that his Son may be served Heir to him in the Estate It is Answered That in the case of the Duke and Dutchess of Monmouth The Conception of the TailÈie not being unlike it was thought the Dutchess was Fiar albeit the Limitation of the Heirs did ultimatly resolve in the Dukes Heirs upon that ground that there is a difference betwixt the case where the Lands are provided and Disponed to the Husband and the Wife and the Heirs of Marriage which
sequitur invalidam esse superius enim dictum est in contractibus obligationibus de successione Talliata de rebus immobilibus praediis nos quotidie disponere eas autem donationes esse mortis causa patet ex praedicta Definitione mortis causa donationis quod omnes de successione contractus mortis contemplatione plerumque non sine mortis commemoratione fiant effectum post mortem sortiantur in iis ambulatoria sit voluntas nisi accedat pactum de non revocando Ad Tertium Respondetur falsam esse Propositionem nec enim cessante causâ impulsiva cessat effectus nec qui periculo imminente mortalitatis admonitus Testamentum condidit si periculum effugerit aut eluctatus fuerit eo minus in voluntate eadem perseverasse censebitur testatus discedit nisi revocasse constiterit Ad Quartum Respondetur Dispositionem reditu eveniente haud nullam aut irritam esse sed revocabilem id ex eo demonstrari Quod sibi soli tantummodo reservarit si domum rediret potestatem revocandi si enim inanis caduca fieret Donatio in casu reditus quorsum ista potestas sibi soli reservata revocandi donationem quoad omnes ipso conditionis eventu extinctam revocatam Ad Quintum Sextum Respondetur Negatur instrumentum post Donatoris reditum penes eum esse penitus supervacuum disceptare an penes eum fuerit cum nunc penes actorem sit sibi a donatore traditum nec necesse est docere quomodo quando ad se pervenerit Senatus Interlocutus est Donationem istam Testamenti naturam haud sapere sed validam efficacem esse Sed si constiterit probatum fuerit penes donantem instrumentum post ejus reditum fuisse tuno revocatum irritum esse An autem eo quod penes actorem nunc sit a revocatione discessum sit reviviscat Donatio interloqui sustinuit ulterius inquirendum censuit quando quomodo ad actorem pervenerit D. 124. Whitehead contra Straiton 14. Novemb. 1667. RObert Whitehead of Park pursued John Straiton Tacksman of the Park of Holy-rood-house for the price of a Horse put in the said Park to be pastured for 4. shil per night which after search cannot be found It was Alledged That by a Placad affixed upon the Gate of the Park It was intimated that the Keeper of the Park would not be answerable for any Horses put therein although they should be stolen or break their Neck or any other Mischief or Hazard should overtake them It was Replyed That by the Law Nautae Caupones c. the Keeper ex conducto is lyable unless it were alledged That it had been expresly agreed that he should not be lyable or at the least that it was known to the Pursuer that such a Placad was affixed when he put in his Horse The Lords Before answer ordained the Reporter to enquire and hear the parties upon the terms of the Agreement when the horse was put in whether it was told or known to the pursuer that the keeper would not be answerable Castlehill Reporter D. 105. Gardiner contra Colvil 16. Novemb. 1667. IN an action Gardiner contra Colvil the pursuer being ejected during her Husbands absence out of the countrey and when it was supposed he was dead The Lords sustained the pursuite Though the time of the adviseing the probation It was offered to be proven that he was living and did declare that albeit the Husband were at the Barr they would give the Wife the benefite of Juramentum in litem in respect of the wrong done by the Defender and the particulars and quantities could not otherwise be proven Actor Longformacus alter Wallace Castlehill Reporter D. 106. Trotters contra Lundy 20. Novemb. 1667. THE Children of George Trotter in Fogorig being confirmed Executors to their Sister Isobel Trotter pursued James Lundie Cautioner in a Bond for James Trotter of the East-end of Fogo for the Sum thereinconteined It was Alledged that the said James being Heir to his Grand-father Alexander Trotter in the East-end of Fogo and the said George Son to the said Alexander and Executor to him they did transact together that the Movables belonging to the said George as Executor should remain with the Heir and the said James and the Defender as Cautioner did for the cause foresaid grant the said Bond blank in the Creditors name wherein the said George filled up the name of John Trotter in Chester his Brother and procured from him an Assignation for the said Isobel his Daughter And that thereafter upon a Submission betwixt the said George and Alexander Trotter Son to the said James granter and principal Debitor in the said Bond The Arbiters ordained the said George to give back to the said Alexander the said Bond and Assignation with a Discharge thereof and therefore the said Isobel being in familia paterna and the said Bond and Assignation being taken and procured as said is by the said George the Father in favours of the Daughter who hath no visible Estate or means to acquire any such Right he was still master of the same And it being ordained to be Discharged as said is the said Debt is Extinct It was Answered that the Bond being filled up and Registrat in the name of the said John Trotter and the samen being Assigned and the Assignation in favours of the said Isobel intimat and after her decease her Executors having confirmed the said Debt all before the said Submission her Father could not by the Submission or any other deed of his Evacuat the said Right Established in the person of the said Isobel and her Executors And as to the Practique betwixt Monimusk and Pittarro whereupon the Defenders alledge it doth not quadrate to the Bond in question it being never delivered but depositat in the Uncles hand Mother Brother to the Child and in the same case It was Found That the Father could not retract a reall Right made in favours of his Child and Heir And here there is Eadem Ratio The Lords Found That the Father being Master of a Bond or Right whereupon nothing followed being granted by himself may throw it in the fire and may consequently Discharge it But the said Right being made publick and compleated by the delivery and which is equivalent by some publick deed by Infeftment if it be Heretable or by Assignation intimated or confirmed Testament if it be Movable he could not thereafter Retreat or prejudge the same And repelled the Defence in Respect of the Answer Hackertoun Lord Reporter Mr Thomas Hay Clerk D. 107. Pollock contra Pollock eod die JOhn Pollock having granted a Bond of 5000 Merks to James his second Son of the first Mariage The said James intented and pursued for payment both Robert eldest Son of the same Marriage Heir of Line and John eldest Son of the second Marriage and Heir of
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour
spe tantum altero est actu nostrum sed existente conditione resolvitur Nam meum est quod certâ lege meum est Jus Fluviat p. 790. n. 145. deinceps Cautioner and Relief IF a Cautioner be Denounced for his Cautionry will the Principal be lyable to relieve him of the loss of his Escheat Ratio Dubitandi The Principal is obliged to relieve him of what he should pay for him but not of the prejudice he should sustain for his Contumacy and Rebellion through his not payment Chaplainrie LAnds being holden of a Chaplain a Bishop being Patron if there be not a Chaplain and the Bishop delay or refuse to present what course shall be taken by the Vassals Heir or singular Successor to get Infeftment If the Bishop may not be pursued and the Director of the Chancery to hear and see him decerned to present a Chaplain and to exhibite to one of the Clerks of Session the Presentation to be registrat to the effect it may be known and patent to the Leidges and that within _____ days after he be charged And in case of disobedience verified by a Horning against him upon the Decreet The Director of the Chancery to direct Precepts for infefting of the Vassal Seing by Act of Parliament anent the Superiority of Chaplainries and such like The Patron to the Chaplain is appointed to be Superior to the Chaplains Vassals Quaeritur If Chaplains hold of the Bishops the Bishop will be Superior Answer It is thought not seing the said Act of Parliament is only in favours of Laick Patrons and was made when the Bishops were suppressed Charge to enter Heir AN appearand Heir being charged to enter Heir in General and renouncing Quaeritur If there may be a Comprising or Adjudication against him unless he be charged to enter Heir in Special Ratio Dubitandi That frustra should he be charged to enter Heir having already renounced Yet it is thought he ought to be charged seing a special Charge to enter Heir is Instar and in place of a Special Service and Infeftment thereupon and the Heir may repent that he renounced and may be better advised when he is charged to enter Heir in Special Chattels Real LIferents Non-entries Ward and such like Casualities that are successive when they are gifted they become real Chattels and will fall to the Executors of the Donator as is thought Quaeritur If when they are not gifted they should be considered also as Chattels so as to belong to the Executors of the Superior and not to his Heirs and Successors of the Land Cogitandum Children and Creditors IF a Father grant Bonds to his Children and thereafter contract Debt so that he is not in a condition to satisfie both his Creditors and Children Whether the granting of Bonds for Onerous Causes will import a Revocation of the Childrens Provision At least will the posterior Creditors be priviledged and preferable to the Children Childrens Provisions A Father having disponed to his Son of the first Marriage the Fee of his Estate with power to burden it with 40000 merks for provision of his remanent Children allanerly Quaeritur If he being then married upon a Woman of that age that he could not have Children by her should thereafter marry May he provide any part of that Sum to the Children he had thereafter of the last Marriage Or if the remanent Children in whose favours the Faculty is reserved can only be understood of the remanent Children of the first Marriage he having then five besides the Heir Mr. Alexander Gibson contra his Brother Civitas CIvitates Municipia intelliguntur nomine Reipublicae eis competit beneficium Legis leg 3. cod de Jure Reipub. Sc. Rempublicam ut pupillam extra ordinem juvari Frischius Tom. 2. exercit juris publici exercit 2. n. 17. sequen Praescriptio non currit minori sed Civitati Ibid. 35. Propter tenuitatem civitas novum vectigal imponit Ibid. 37. Gaudet Praescriptione centum annorum Ex solo pacto sine traditione quibusdam casibus habet in rem actionem Ibid. Vsus-fructus ei relictus durat centum annis Ibid. Clauses in Contracts of Marriage THe Contract of Marriage betwixt Alexander Sandilands and Agnes Sandilands his Wife Daughter to Robert Sandilands Dean of Gild beareth that provision Viz. That the said Robert and his foresaids are obliged to the said Agnes and her Spouse that at Robert his Decease the said Agnes his Daughter shall be esteemed a Bairn of the House and Family And shall succeed to her Part and Portion Natural equally with the remanent of Robert's Bairns to all Sums Plenishing Goods and Gear and others that should pertain to the said Robert the time of his Decease The said Alexander is obliged and his foresaids that whatever Benefite shall fall to the said Agnes or her to succeed to by her Fathers Decease or by vertue of the said Obligement to provide the same after he should get it to himself and her in Conjunct-fee and Liferent and to the Bairns betwixt them which FailÈieing his Heirs and Assigneys 9 January 1657. Registrate 1 March 1671. The said Alexander is obliged to provide the Conquest to himself in Liferent and their Bairns in Fee The Contract of Marriage betwixt John Hamilton Writer and Rachel Sandilands the other Daughter of the said Robert Bears That they accept the Tocher in satisfaction of all other Sums Executory Debts Goods and Gear and others whatsomever which was provided to the said Rachel or which may fall or pertain to her or may be claimed by her by Decease of the said Robert or her Mother Mause Weir All which she and her Husband Assignes to the said Robert his Heirs Executors or Assigneys to be Disponed at their pleasure By the Clause of Conquest the said John is obliged to provide the same to himself in Liferent and the Bairns in Fee And to that effect to insert the Bairns Names in the Writes The said Rachel if her Husband Decease before her is to have if there be no Children the half and if there be the third of the plenishing of the House the time of his Decease which is to be made free of Debts by his Heirs and Executors Quaeritur If the Obligement to succeed to all that should pertain to the Father should be understood only as to a Bairns Part and should not be extended to the Deads-part If what should fall to Agnes after her Fathers Decease should belong to the Bairns of the Marriage though the Marriage be disolved through the Husbands Decease before the Father Robert his Decease If Rachel the other Daughter notwithstanding her Renounciation will come in as one of the nearest of Kin at least as to Deads Part Viz. Deads third and the half of a Bairns Part. By Contract of Marriage the Husband is obliged in the first place to provide 30000 Merks to his Wife in Liferent and the Heirs of the Marriage presently And to the other
could not Dispone the Lands for an Onerous Cause But if the Father had Disponed the Lands provided by the Contract without an Onerous Cause after the Elder Son his Fee or had resigned of purpose to defraud the Heir of the second Marriage the Father would be Lyable de Dolo and the said Deeds reduceible But the Eldest Son being once Liberate by implement would not be Lyable Tweeddale contra DrumelÈior There being Heirs General and Heirs Male and of Provision and Heirs of a second Marriage being provided by their Mothers Contract of Marriage to certain Provisions whereunto they have Right as Heirs of Provision Quaeritur quo ordine will the Heirs of the second Marriage be lyable to Debts and Discussion Answer It is thought that they being Heirs upon an Obligement quasi creditores it would appear that they should be Lyable in the last place in subsidium all others being discust In Contracts of Marriage The Husband being for the most part obliged to provide and resign his Estate for Infeftment to himself and the Heirs Male of the Marriage which FailÈieing to his Heirs Male of any other Marriage which FailÈieing the Heirs Female of his own Body the Eldest succeeding without Division Quaeritur If the Husband should resign and take such a Right upon Resignation but thereafter should resign in favours of other Heirs Whether the Heirs of the Marriage may question the said alteration and what way Ratio Dubitandi That an Heir is eadem persona and cannot question the Deed of the Person whom he represents Answer He is not simply Heir but Heir of the Marriage And as to Obligements in his favours he is Creditor 2do It is thought he may pursue a Reduction of the foresaid Deed as being in prejudice of him as Creditor or he may pursue the Heir of Provision by the posterior Right for implement of the said Obligement Quaeritur When by such Provisions there are other Heirs substitute to the Heirs of the Marriage Whether the Husband may alter the Destinations as to the said other Heirs And if he do if they may question the Deed Answer It is thought that the Heirs of the Marriage are only in Obligatione And the other Heirs in destinatione mariti which he may alter A Person being obliged by Contract of Marriage to resign certain Lands in favours of himself and his Wife in Liferent and the Heirs Male of the Marriage whilk FailÈieing his Heirs whatsomever And likewayes being obliged that what he should get by his Wife by any Legacy or Right or Assignation in her favours to secure and employ the same to himself and her in Liferent and to the Heirs of the Marriage which FailÈieing to his Heirs whatsomever And he having accordingly resigned and taken Infeftment to him and her and the Heirs foresaid And a Sum of Money having fallen to her and being uplifted and Discharged both by him and his Wife before Inhibition and thereafter there being Inhibition upon the said Contract at the instance of certain Friends at whose instance Execution is appointed to follow These Questions do arise 1mo If notwithstanding the said Inhibition he may Dispone the Lands Answer He may Dispone the same being Fiar And the import of the said Obligement is that the Right of Succession as to the said Lands should be secured to the Heirs of the Marriage in case the Father should decease in the Fee of the same so that he cannot provide them to other Heirs But it is not intended thereby that the Father should not have the Right competent to all Fiars Viz. That they may dispose of the same if their condition requires Quaeritur If he may at least Dispone the same without an Onerous Cause Answer It is thought not seing all Obligements should be understood ut actus valeant operentur And though the Father be Fiar his Fee is by the said Obligement so restricted in favours of the Heirs of the Marriage that he cannot fraudulently and to evacuate the said Obligement Dispone without an Onerous Cause If the Inhibition will be effectual as to the Sum e. g. of 10000 lib. neveremployed Answer It will be effectual as to the Wife But as to the Heirs of the Marriage there may be question Ratio Dubitandi That there being an Obligement it ought to be once fulfilled by employment to him and his Wife and to the Heirs of the Marriage And on the other part seing notwithstanding the Inhibition he might have disposed of the said Sum if it had been employed there is eadem Ratio if it be not employed Seing his Condition may be such that he cannot employ the same If it be not to be considered what truely his Condition is And if it be such that he cannot employ the said Sum without Ruine That he should not be obliged to employ it Dicis Causa to be thereafter uplifted And if a Process may be intented against his Children to hear and see it Found and Declared that he should have power to Dispone notwithstanding of the said Inhibition and Obligement foresaid both as to Lands and Money Seing if the Money were employed he could and might dispose of the same being Fiar And he is not in that Condition to raise the said Sum and employ it Watson of Damhead Heirs Portioners WHen Women succeed as Heirs whatsomever v. g. Three Daughters they succeed as Heirs Portioners without any priviledge of Primogeniture Quaeritur if the Three Daughters succeeding be deceased leaving each of them Sons and Daughters Will the Eldest Son of any of them exclude the rest of the Children and be Sole Heir Portioner to the Grandfather Ratio Dubitandi As Primogeniture is introduced for the preservation of Families which does not militate in successione Foeminea Women being finis caput Familiae There ought to be no respect to the same in the second Degree nepotibus as there is not in primo gradu in filiabus There being utrinque eadem Ratio Where there is a plurality of Heirs Portioners and some of them become Lapsi may the Debt be recovered in solidum from these who are Responsal Cogitandum If a Barony descend to Heirs Portioners will all have Right of a Barony If any Superiorities belong to the Barony will the Eldest only be Superior Heirs of Provision and substitute WHatever belongeth to a Defunct in Fee and Property whether Land or any other Interest the time of his decease cannot be transmitted but to Representatives or these who are instar haeredum and bonorum possessores as in the case of Lands provided to Bairns of the Marriage the Bairns are in effect Heirs of Provision And if Sumes be provided by way of Substitution to another person after the decease of the Creditor the Substitute will be Lyable to the Creditors Debt other Heirs being discussed Heirs of Provision being oftimes Strangers and in re certa Quaeritur will they only be Lyable secundum vires If a Right of
Titio nec imputandum nec officit Patrimoniorum siquidem conditio Jura viduae liberorum legibus constituuntur nec aequum est ea ex arbitrio haeredis pendere aut ambulare Porro haereditatis delatio Facultas adeundi aliis casibus nedum hoc haud parum operatur haerede enim perduelli Majestatis reo haereditas etiam non adita amittitur Fisco quaeritur Legitimation per subsequens Matrimonium A Person after his first Marriage of which he had Children having Married again and having diverse Children by the Woman Married to him in that second Marriage elder nor the first Children which are thereby legitimate Quaeritur Whether the Eldest Son with the second Wife will be preferred to the Son of the first Marriage as to the Right of Succession Ratio Dubitandi The first Marriage was Contracted Spe and in contemplation that the Children of that Marriage would succeed and the Eldest Son by his Birth had Jus primogeniturae as the first Lawful Son which could not thereafter be taken from him e contra the Son of the second Marrriage the time of the Fathers Death which is to be considered as to the question of the Succession is his Eldest Lawful Son Cogitandum If a Person may Marry on Death-bed in order to the Legitimation of Natural Children in prejudice of his Agnats who would otherwayes succeed Marriage and Legitimation THere being a Declarator intented to hear and see it found that the Children were Lawful in respect there was a promise and Copula Quaeritur If the pursuit being after the Fathers Decease in order to the Succession to the Good-sire the promise may be proven prout de Jure as it might have been before My Lord Neutoun told me that after the Fathers decease it is found not probable by Witnesses Laird of Lauder Lenteratio LEuteratio vide Appellatio in Litera A. Libellarius Contractus LIbellus sive Libellaria est contractus quo interveniente scripturâ res immobilis venditur certo pretio certa insuper pensione in singulos annos ea lege plerumque addita ut stato condicto tempore renovetur denuo numerato pretio certo vel arbitrario Hering de molendin q. 29. n. 4. Est Italis usurpatus dicitur a scriptura Libello seu brevi charta Ibidem n. 6. Liberi INdefinito Liberorum nomine censetur actum de natis tempore Contractus non de nascituris Hering de molendin quaest 20. n. 19. Liferenter IF a Liferenter of Lands Stock and Teind having Set the Lands to Tennants for a Duty for the Stock and drawing the Teind and having deceased before Martinmass after drawing the Teind Quaeritur will she be Lyable to the Heir for the half of the Teind Ratio Dubitandi For the Heir That she dying before Martinmass he ought to have the half of that Years Duty And for the Liferenter that she had Right to the Teind after it was separate and collected so that she might have disposed of it and having gotten it it cannot be taken from her and that the Legal terms are to be considered in the case of Debt when dies cedit but in this case nihil debetur but she has Right to the Fruites Teinds and Quota of them in the same manner as the Tennant and as if she had laboured Vide Third and Teind Letter T. Vide Titular litera T. q. 2. vide Milns Litera M. Where Grass Roums are set for payment of a Silver Duty by the Tennent entering at Whitsunday the half at Martinmass and the other half at Whitesunday thereafter Quaeritur If the Liferenter decease after Martinmass whether the Martinmass Duty will belong to her Executor Ratio Dubitandi That the Duty payable by the Tennant entering as said is and going away at the next Whitesunday is payable in respect of the Cropt and proventus of the next Year either of Corns or foetura animalium and it is without question that a Tennant paying a Silver Duty for a Corn-Roum albeit he pay at Martinmass after his entry yet it is payed for the next years Cropt so that the Liferenter can pretend to no part thereof deceasing the time foresaid and on the other part it appears that there may be a difference as to Grass Roums seing the half of the Duty seems to be payed for the profite of the Grass from Whitesunday to Martinmass which falls within the Liferenters Right Quaeritur Quid Juris As to Salt-pans and Milns if the Liferenter have the same in her own hand whether her Right is presently determined by her Death The same being set to Tennants from Candlesmass to Candlesmass If the Liferenter deceased after Lambmass and Martinmass will her Executors have any part of the Duty after Lambmass When Rentals are set in these terms That beside the Rental Duty there should be every five Years a considerable Sum payed as in Contractu Libellario Quaeritur If the Liferenter will have Right to that Sum if it fall to be payed during the Liferent When the whole Estate of a Nobleman is Disponed reserving his Liferent or of a Baron will the Liferenter have Vote in Parliament and Voice in the Election of Commissioners for Shires A Lady being Infeft upon her Contract of Marriage in Lands for her Liferent Quaeritur If Tacks set thereafter by her Husband will bind her Vide Terce quaest ultima Executors of a Liferenter IF a Woman deceaseth after Whitesunday before her Husband will her Executors have Right to a part of the years Farms Liferents DIes as to Liferents when the question is betwixt the Executor of the Fiar and Liferenter cedit at Whitesunday and Martinmass as the Legal Terms Quaeritur If a Bond be to a Man and his Wife the longest liver payable at Lambmass and Candlemass and the Husband deceasing after Candlemass will the Husbands Relict have Right to a half year at Whitesunday If a Father be Infeft in Liferent in Lands and be content to renounce his Liferent in favours of his Son Quaeritur If it be habilis modus to extinguish his Liferent Ratio Dubitandi He is the Superiors Vassal during his Life and cannot cease to be Vassal without the Superiors consent at least sine refutatione When a Vassal is Year and Day at the Horn if he has granted a Right to be holden of himself what will be the Import of his Liferent If a Liferenter do Dispone his Liferent of Lands or if the same be Comprysed from him and thereafter he be Year and Day at the Horn Quaeritur If the Superior will have Right to the Liferent as if the said Right had not been granted Answer It is thought he can have no other Right than such as the Liferenter had and affected with the said Right If the Liferenter be Forefaulted will not the King have the Right of the said Liferent without the burden of the said Rights And if it be so Quae Ratio
prejudged to question or dissolve the Marriage as null or dirimendum upon that or any other Ground If a Marriage be unlawful and either of the Parties be in bona fide which doth legitimate the Children Quaeritur If these Children will succeed with other Children of lawful Marriages at least to their Parents If they will succeed to their other Kinsmen or if the Legitimation will only import that they are not Spurij and that they have Testamenti factionem If a marriage after Inhibition may be reduced upon that ground What are the Legitima Remedia to compell parties to consummate marriage upon Contracts Whether they may not only be decerned by the Commissars but by the Church under the pain of Ecclesiastick censure Where some Lands hold of the King Taxt-ward and others hold of him Simple ward Quaeritur will he get both the simple Marriage and the taxt Sir Iohn Cuninghame saith it was decided in the case of Innernytie for both Marriage being dissolved within year and Day whether the Gifts and Jocalia given hinc inde may be repeated Item whether the gifts given by friends will fall under communion So that the Maxim that Marriage being dissolved within year and day is in the same condition as to all intents as if it had not been Is only to be understood of Dos Donatio propter nuptias If an old Woman super annos and past the age of Marriage being about Threescore years shall succeed in the Right of ward-Lands whether Marriage will be due Iohn Bonars Heir Quid Juris if a widow either man or woman inter annos nubiles shall succeed to Ward-lands Barclay of Pearstoun If a Person have only two acres or a mean interest in Ward-lands but a very great interest otherwise Whether will his Marriage be considered with respect to his whole Estate Seing the Marriage of appeirand Heirs belongs to the eldest Superiour Quaeritur who shall be thought the eldest Superiour whether the eldest as to the Lands or as to the Vassal and if it be to be considered which of the Lands was first given in Tennandry Quid Juris when a Marriage is fallen but not declared nor gifted A Marriage being contracted betwixt a woman Pubes and one that is impubes Quaeritur If it be a Marriage at least as to her so that she cannot marry with another in the interim that he is not pubes Ratio Dubitandi That a Contract being mutual cannot Claudicate A Father by his daughters Contract of Marriage having disponed to her and the second Son of the Marriage and the other Heirs therein mentioned his Estate under Reversion and certain other Conditions and in special if he should ordain a certain Sum should be payed by these who should succeed to the Estate to his Daughter and her forsaids and the said contract bearing also a Tocher of five Thousand pounds to be payed presently to the Husband Quaeritur If the Marriage be dissolved within year and day without Children whether the Contract will be ineffectual as to all intents as being causa data non secuta cum effectu Or whether it be as to the Right of the person of the Daughter either as to the Estate or as to the said Sum ipso facto void at least reduceable And whether she may repeat the Tocher from the Husbands Heirs Lady Yesters contract of Marriage being dissolved within year and day A person being Heir to his Father in a great Estate holden blensh And having a small piece of Land holding ward which he may succeed to as Heir to his Father Quaeritur If notwithstanding he is Heir general and Heir in special in the Lands holden blensh he needs not Enter to the saids ward Lands in order to be free of a Marriage which would be considered with respect to the whole Estate Ratio Dubitandi That being Heir as said is otherwise he cannot refuse to be Heir of the said Lands Answer It is thought that if he was charged to enter Heir in special at the instance of a creditor in special he could not renounce But the superior cannot urge him to Enter but will have only the benefite of a Nonentry Seing the said other Lands and any interest he had as general Heir are distincta patrimonia from ward Lands and he may owne the one without the other If the superior may affect and evict the said ward Lands by adjudication for the Marriage of the appearand Heir considered with respect to his other Estate in prejudice not only of the appearand Heir but of any who should thereafter be appearand Heirs Ratio Dubitandi That the Marriage being but a Casuality may exceed more than the double of the value of the Lands which is absurd Cogitandum If the appearand Heir will notwithstanding be lyable to the Marriage albeit he doth not enter nor renounce to be Heir as to these Lands Ratio Dubitandi That Refutatio of vassals is not admitted unless they satisfy the casualities already fallen Answer It is thought he may renounce and be free of the casualities personally without prejudice to the superior to affect the Ground and the case is different from that of vassals infeft Seing they having accepted the Right they cannot offer to renounce unless they pay what was formerly due to the superior being fructus Dominij whereunto not only the Ground but they are lyable personally by reason of their Right and possession and it cannot be said that the appearand Heir has either Mortounhall There being diverse Adjudications of Land holding ward within year and day but Infeftment only upon one and that adjudication whereupon Infeftment is being before the debitors decease and therefore stopping the Ward and the rest after but within year and day of the first Infeftment Quaeritur If the first be satisfied by intromission may the superior claim the Ward of the appearand Heir of the Debitor being Minor in respect the act of Parliament Debitor and Creditor doth relate only to the interest and and competition of creditors and doth not prejudge superiors of their Right and casualities and the adjudger Infeft is only vassal and the other adjudgers are not vassals and by them the superior can have no casuality either of Liferent Ward or Marriage Cogitandum L. Bancreiff When diverse Lands are holden of the King some in simple Ward and others Taxt as to the Ward and Marriage Quaeritur when the Marriage falls whether the King will have both the simple Marriage and the taxt Marriage Answer That since at one time there can be but one Marriage there can be but one Casuality for the same and as the King would have but one Marriage albeit there be diverse Lands holden ward of him simple-Ward So in the case foresaid where there are some taxt he cannot have two Marriages and the taxt being only aestimatio where there can be no Marriage there can be no Taxt due The same question may be of Lands holden simple and Taxt-Ward
and Law of Nations the benefite of the Sanctuary may be competent Whereas by Act of Parliament there is no Sanctuary for fore-thought Felony Renounciation QVaeritur If the Father or his Executor may urge the Daughter who has renounced to confirm her self Executrix to her Mother to the effect her Renounciation may be effectual Vide of nearest Kin. Quaest 4ta litera K. Renounciation by Daughters at their Marriage IF a Man have a Son and Two Daughters and both the Daughters Renounce all Executry Debts Goods and Gear whatsomever either provided to them or which may fall or pertain to them by the Decease of their Father or Mother Quaeritur If the Son will be both Heir and Executor If a Person charged to enter Heir and renounceing may notwithstanding be served Heir Answer He may be served and no other person or Creditor can oppose upon pretence of the Renounciation seing Charges to enter Heir are Personal Diligences as to the Chargers only and Renounciations in obedience thereto do militate only in favours of the Chargers If the Charger may oppose Answer If he has any prejudice or Interest he may oppose but it is thought he can have none seing notwithstanding of the Service what is done upon the Charge or Renunciation will be effectual and the Renounciation is actus involuntarius for Obedience and with us there is not Locus successorio Edicto And it were hard if Haereditas should be Opulenta that the Heir could not Enter Renunciatio Juri Publico REnunciare potest Debitor immunitati Nundinarum quia licet favorem publicum habeant nundinae principaliter tamen de privatorum commodo agitur regula communis est Quoties privato favori Lex aliquid introducit principaliter licet secundario publicam causam annexam habeat Renunciari huic favori posse Thes Bes Litera M. 43. P. 631. Res Fiscales res privatae Regis REgalia res Fiscales res privatae Regis magno intervallo inter se distant â—ae enim sunt privati Patrimonii quae Principi ratione personae non ratione dignitatis obveniunt At quae Rex ex suis provinciis ditionibus ut Rex vel Princeps percipit ea ad ipsius Patrimonium Fiscale pertinent nec ad haeredes transeunt licet in rebus privatis succedant nisi etiam in principatu succedant Hering de molend quaest 9. n. 71. Re-seasin upon Reduction A Right being granted to be holden of the Superior and after Infeftment being reduced Ex capite Doli vel Metus Quaeritur Whether the former Right revives Or if there must be a new one what way is it to be taken It is Answered That it is thought that the Seasin being taken away and being Facti which cannot be infectum there must be a new Seasin and the Superior is to be dealt with to give a precept making mention of the former Seafin and Decreet of Reduction and that he is willing to receive again the Disponer If the Disponer be deceased Quomodo shall his Heir be infeft Answer Being served Heir he may apply to the Superior for a Precept mentioning as said is and that he his Heir If the Lands be holden of the King what course should be taken Answer upon application to the Lords by Bill they may grant warrand to the Directors of the Chancery to give precept of the nature foresaid If the Superior may be forced to receive his former Vassal in the case foresaid And if he should will Composition be due Answer It is thought that he ought to receive him but upon composition seeing having once entered his Vassal he is not obliged to Re-enter but upon Composition Reservation in favours of Relicts BY Contract of Marriage a Lady having accepted a Liferent-provision in Satisfaction of all she could claim either of Terce or Moveables excepting and reserving the third of the plenishing of the House Quaeritur whether by the said reservation she has a Right settled in her person to the third of the Plenishing free of debt and moveable Heirship Or if the said Third be only understood of free gear the debt being payed and Heirship deduced Item if the said Third be lyable to a Bairns part if all the Executry be exhausted but the said Third Resignation IF a Superior who is a singular Successor may infeft upon a Resignation in his Authors hands as upon a Comprysing the time of his Authors Right IF a Superior has given a Charter upon Resignation whereupon there is no infeftment Quaeritur If he be denuded of the Superiority will the singular Successor therein be obliged to renew the Right and to grant precepts to that effect and by what action he may be urged Quaeritur If after Resignation the Disponer and the Person in whose favours the resignation is made may agree and recede from their bargain without consent of the Superior upon pretence that the Resignation is in favorem and every Person may renounce Juri pro se introducto It is thought They cannot res non est integra there being a quasi contractus betwixt the Superior and them If after Resignation accepted the Superior be denuded whether his Successor will be obliged to infeft him And what way he may be urged It is thought That Succedit in rem cum sua causa and upon a Bill to the Lords there may be a warrand to direct precepts as upon a Retour If an Instrument of Resignation in favorem will prejudge a singular Successor seeing it is not Registrate De Resignationibus Quaestio Prima An Resignatio in Manibus Domini Superioris alienantem penitus devestiat ALienato praedio ex mandato in Instrumento Alienationis inserto Resignatione subsecuta a Domino directo admissa Quaeritur An ea Alienantem ita devestiat ut nullum Juris vestigium penes eum supersit nec eo mortuo aut delinquente custodia haeredis minoris aut Maritagium vel alia emolumenta Domino directo obveniant Respondere visum est Alienantem penitus devestitum Dominio utili exutum nec ex ejus obitu vel delicto obventiones quae sunt Dominii directi fructus deberi Domino directo omnia siquidem quae Vasalli ut devestiantur facere solent aut debent rite peracta sunt nec obest quod unius interitus est alterius ortus nec Jus proprietatis Dominii directi a Domino discedit nisi alii acquiratur dici autem nequit Emptorem aut eum cui Alienatio facta est Dominum aut Vasallum esse antequam a Domino directo investitus sasitus sit Jus siquidem nedum ad rem per alienationem quaesitum est ei in cujus favorem Resignatio facta est sed tantum non in re inchoatum eatenus ut feudum sit penes Dominum directum quasi per fideicommissum in rem ejus cui alienatio facta est ita ut eum ejusque haeredes investire teneatur
said Bond does terminate upon the Wife and her Heirs yet the Husband will be Fiar both as dignior and because the Right of the Sum will pertain to his Heirs in the first place and to the Wife and her Heirs only upon their failÈieur and as Heirs of Provision to them And Therefore In the present case the Money being lent by the Husband and being provided after his decease to his Son Robert and the Heirs of his Body whilk failÈiening the Heirs of the Marriage betwixt the Husband and the Wife and to the Wifes Heirs only in the last place It is thought That her Husband is Fiar and that the Wife and her Heirs will only have Right as Heirs of Provision unto him And if Robert should have had Children or if there had been other Children to the said Robert Elder by the said Katharine it were absurd that they should have had the Right of the said Sum which was lent by the Husband not as Heirs to him being their Grand-father or Father but as Heirs to the said Katharine being their Mother or Grand-mother or that the said Katherine surviving her Husband should have power as Fiar of disposeing the said Sum or to have given it to a second Husband in prejudice of the said Robert her Son or the Heirs of his Body and the Heirs if there had been any thereafter procreate of her Husband and her tho descended of both If it be found by the Lords that either the said Robert Selkirk Elder or his Son Robert was Fiar the said Katharine must be served Heir of Provision to the Fiar Substitution in Legacies A Legacy being left to a Person and failÈiening of him by decease to another Quaeritur What the Import of that Substitution is Answered It is thought That it is Substitutio Vulgaris and that the Effect of it is That if the Legatar die before the Testator so that the Right do not take effect in his Person it should belong to the Substitute But that is not fideicommissaria So that the Legatar dieing after the Testator it would belong to his Executors and not to the Substitutes Successio in Maternis A Grand Father upon the Mothers side having the time of his decease two Daughters and Children of a third Daughter Quaeritur If the two Daughters will only succeed and exclude the Children of the third Ratio Dubitandi That Representation is in order to the standing of Families and in the case of Primo-geniture whereas in Successione materna the Interest of Families is not considered seing the Grand Children by their Mother has not somuch as caput in Familia And for the same reason mobilia because they are not the Foundation of Families admitt no Representation Answer It is thought by our custom The Children of the deceist Daughter will succeed with their Materterae Et non potest reddi ratio omnium quae a majoribus constituta sunt If the Children of the deceast Daughter do succeed Quaeritur If the deceased Daughter has left Sons and Daughters whether the eldest Son of the said Children will succeed to their Grand Father Or if all the Children will be Heirs Portioners as to their Mothers part Seeing for the same reason that their Mother and Aunts are Heirs portioners viz. That they are finis Familiae a fortiori they who are not in Familia at all ought to be Heirs portioners Answer It is thought that the eldest Son of the deceast Daughter will succeed as Heir portioner with his Aunts and the Law doth favour not only Families as to preservation after they are constitute but likewise as to their Constitution And the eldest Son albeit he be not in Familia materna may constitute and be a head of a Family of his oun Successio in Stirpes SI duo Conjuges ita testentur post utriusque obitum utriusque haeredes ex aequo successuros haeredes fore tunc non in capita sed stirpes succedunt in duas aequales portiones haereditas dividenda est quia quilibet suos haeredes aeque dilexisse creditur illis ex aequo prospicere Thes Bes verbo Gleich 62. P. 323. 324. sect ult De Successione in Feudo amisso quo Jure censenda utrum Haereditatis an Conquestus QVaeritur De Feudo amisso reverso quo Jure censendum sit utrum Haereditatis an Conquestus de omnibus commissi speciebus competit sive ob Alienationem sive Disclamationem sive Purpresturam vel Baratriam aut qualemcunque Feloniam aliudve delictum feudum apertum dicatur Sed quia Recognitio frequentissimus apud nos feudi ex commisso vindicandi modus increbuit de ea praxi nostra maxime solenni textui accommodatiori quaestionem agitabimus Decisionem ad reliqua commissa indistincte porrigendam praefati Quaeritur igitur cum Superior feudum per Recognitionem sibi asseruit utrum feudum Recognitum post obitum ipsius ut conquestus ascendat An vero ut haereditas cum feudo dominanti descendat posito feudum dominans haereditarium esse Quaestio haec in se difficilis gravissimas consequentias secum trahens haud aequali tamen difficultate in omnibus Recognitionis speciebus laborat Quod ut patefiat sciendum duas apud nos invaluisse Recognitionis species ex causarum diversitate diversas unam ob defectum Vasalli alteram ob delictum Ex posteriori causa feudum ob delictum admissum Vasalli dicitur proprie committi Ex priori Vasalli prosapia quam in prima feudi concessione dominus ad feudi successionem asciverat extincta feudum dicitur finiri cum stemmate in quo resederat exspirare si enim ab initio contessum est alicui haeredibus masculis ex ipsius corpore progenitis vel descendentibus masculis Vasallo mortuo nec ullo ex descendentibus masculis superstite dominus feudum ab haeredibus talliae vel per foeminas descendentibus revocat hanc feudi revocatïonem Balfurius Recognitionem vocat ejus praxin prodidit in Tract de Recognitionibus datam 18. Decemb. 1506. Regio Advocato agente contra Joannem Margaritam Auchtrans haeredes alterum talliae alteram lineae Et hoc Genus Recognitionis etiam in feudis Francis locum habet feudo hac ex causa revocato etsi dubitari potest utrum in persona domini ád quem revertitur Haereditatis an Conquestus naturam induat certum est eodem jure quo feudum dominans censeri eandem naturam qualitatem sortiri respectu successionis omni alio respectu qui ex distractione divisione propriorum seu haereditatis conquestuum secundum nostram consuetudinem posset emergere Quin etiam hoc casu non solum Dominium directum dominium utile attrahit sed possessio civilis possessionem naturalem advocat adeo ut Dominus directus possessionem naturalem nactus non dicatur novam adeptus sed veterem continuare possessionem
when he was in liege poustie and had power as Dominus to dispose of his Goods or to grant Bonds which might affect the same The Relict could have no Legitime but of the free Gear the said Bond and other Debts being satisfied Some of the Lords were of the Opinion that the Bond should affect the haill Goods But others thought that it ought to affect only the Defuncts part seing there is a Commumon betwixt Husband and Wife and albeit the Husband is said to be Dominus and has full Administration of the same so that he may dispose thereof and grant Bonds for Onerous Causes yet he cannot in prejudice of the Communion and the Wifes Interest foresaid dissipate and give away the same by fraudulent Donations of purpose to prejudge either the Relict or the Children of their Legitime But this point was thought fit to be heard and debated in praesentia D. 303. Forbes of Colloden contra Ross and others 26. November 1675. A Decreet at the instance of Forbes of Colloden against Robert Ross and others before the Commissar of Ross being questioned upon that Ground that the said Commissar had committed Iniquity in Repelling Relevant Declinatures whereof one was upon the account of his Relation to the Pursuer being the Commissars Uncle And an other was upon account of the nature of the Action Alledged not to be consistorial and the subject of the Process tho it had being proper otherwayes yet being far above the Sum of 200 Merks was such as by the Regulation the Commissar could not be Judge in And likewayes in resâ—ect that the Commissar did assume to himself a Power to modify a great Sum extending to above 6000. lib. for the Charges the Pursuer had been at in proâ—ecuting a Plea by warrand of the Defenders and wherein he and they were concerned And the said Modification was upon no other Probation but the Pursuers Oath and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative Some of the Lords were of the Opinion That the Commissar notwithstanding of the Relation foresaid could not be declined seing there is no statute that Judges may be declined upon that account And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session There is no other Relation that can be a Ground of Declinator but where the Judge is related to either of the Parties as Father Brother or Son And yet others were of the Opinion that a Nevoy being of so near Relation may and ought to be declined In respect by the Common Law persons of that Relation are most suspect and cannot be Judges And by the said Law a Judge may be declined upon any Ground that may decline a Witness and there is more reason to decline Judges than Witnesses seing there may be penury of Witnesses and they may be so necessary tho related to the Parties that others cannot be Found And the said Act of Parliament as all Acts of Parliament especially such as are correctory Juris communis ought to be taken strictly and cannot militate but in the case therinintended and exprest And the said Act is upon special considerations in Relation to the Lords of Session and particularly of the Eminent Integrity that is presumed and ought to be in the Supreme Judicatory The Lords without entering upon the Debate of the said other points turned the Dcereet in a Lybel Forret Reporter Clerk D. 304. Anderson of Dowhill contra Lowes 27. November 1675. William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers Daughter certain Aikers near Glasgow which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill But John Lowes having thereafter Marryed the said William Norvels Relict Elisabeth Gibson and having upon an Assignation to a Debt of the said William Gibson adjudged the said Williams Right from his Appearand Heir And having pursued an Improbation and Reduction of Dowhills Right and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel Dowhill was forced to pursue forproving the Tenor of the said Disposition which was out of the way and which he pretended to have been in the Hands of the said Elizabeth Gibson and to have been abstracted by the said John Lowes her second Husband intending to patch up the Right foresaid And these Adminicles bein Lybelled viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow for Exhibition of that Disposition the said Elizabeth for obtaining a Suspension of the Decreet of Exhibition recovered against her did consign in the hands of Henry Hope the said Disposition and other Writes and that thereafter the said Thomas Norvel upon the said Disposition did obtain a Decreet cognitionis causa before the Baillies of Glasgow In which the said Disposition is mentioned as produced And thereafter the said Thomas did also obtain an Adjudication of the said Aikers wherein also the same was produced And that there is an attested double of the said Disposition which is written by James Galbraith Agent and attested by two famous Notars The Lords admitted the Summonds to Probation And diverse Witnesses being Examined and in special the said James Galbraith and these who were Servants to the Clerk of the Court of Glasgow the time of the obtaining of the said Decreets Cognitionis causa Adjudication and others After much debate before advising in praesentia and amongst the Lords themselves Some of the Lords were of Opinion that pursuites of the nature foresaid being of so great importance and tending to make up a Right to Lands which may be of great value The Adminicles ought to be in Write and most pregnant and that in this case tho there might be ground of presumption yet it cannot be said that there are clear Adminicles in Write In sua far as the attested double cannot be considered as an Authentick Write and it wants a date And as to the Decreet of Adjudication tho it mention the production of the Letters of Disposition yet it appears by the Depositions of the Witnesses and it was granted at the Barr that the principal Disposition was not produced but only an attested Double and needed not to be produced the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication And as to the Decreet Cognitionis causa that it is not a sufficient Adminicle seing both it and the Decreet of Adjudication bearing the Production in the same Terms there might have been the same mistake in the Decreet Cognitionis causa that is confest to have been in the Adjudication viz. That the Attested double being only produced yet the Production is made to bear the Disposition and there being so short a time
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having