as the King of Sweden is not to be Retrenched nor Limited but by the exceptions contained in it self and in it there is no such exception but generally the Pass as is there qualified excludes all search or question of Men or Goods which is also the Kings meaning which appears expresly by the foresaid Letter which albeit it could not Derogat from a privat Right yet may well clear the dubious interpretation of a Treaty and is sufficient in this Case where the King alone dat leges bello The Lords upon consideration of the last Dispute did ordain the President to state the Case and represent it by the Secretary to the King both as to the meaning of the Treaty and the Letters and specially whether Counterband Goods not being the Growth of nor Loaden in Sweden were priviledged to the Swedes thereby November 6. 1667. THe said Cause being again called the President presented the Lord Secretaries Letter bearing the Kings Answer that the Treaty or Letter did not warrand the Swedes to carry Counterband Goods to the Countrey of his Enemies except their own Countrey Commodities Loaden within their own Dominions Whereupon The Lords sustained the Admirals Decreet as to that Reason of Reduction but gave the Parties a time to be further hear'd before Exâ—ract Hendâ—â—son contra Henderson November 14. 1667. HEnderson insisted in the Cause mentioned Ianuary 31. 1667. which was again fully Debated above and it was alleadged that the Writ in question was a Testament or at least donatio mortis causa or at least a Conditional Donation to take effect only in case the Disponer died before he returned so that his simple returning without any further purified the Condition and made it null The Lords having considered the Writ found that albeit it was not formal yet it had the Essentials of a Disposition and Donation interviros and that it was not null by the Disponers return unlesse he had revocked it for they found that the words being that he Nominat and Constitute Henderson his Heir and Successor and Donatar irrevockably to certain Tenements in particular with power to him in case the Disponer returned not to enter by the Superior and Enter to Possession and transferring all Right he had in that case which words Constituting him Donaâ—ar they found were Dispositive words and Effectual and the adding of Heir and Successor could not Evocuat the same and found the Condition of his not returning was not annext to the Dispositive words but to the Executive Clause of Entering by the Superior and taking Possession which was cleared by the Posterior Reservation to recal it after his return It was further offered to be proven that the Disponer not only returned but recalled the Disposition in so far as he had it in his own hands and power after his return It was answered that it was no way relevant unlesse the Delivery of it hoc intuitu were proven for he might have had it in his hands upon many other accounts It was answered that the very having of the Writ did presume that it was Delivered unlesse the other Party would offer them to prove that it came in his hands alio nomine Which the Lords found Relevant Thereafter it was alleadged that as the Disponers having of it presumed Revocation so the Acquirers having of it hereafter presumed a passing from that Revocation and a Reviving of the Right and now it is in the Acquirers hands as to this point the Parties did not Debate but it occurred to the Lords that the Disponers having might be sufficient to infer Delivery but would not infer that the Acquirers having thereafter would presume passing from the Revocation because the Clause reserving to the Disponer a power to Recal made the naked Recovery of the Writ sufficient to him and did annul it but it was more dubious what was requisit to revive it whether naked Having or expresse Delivery hoc intuitu or if something were not requisite in Writ and therefore before answer to that point The Lords ordained the Pursuers who now had the Writ to condescend and prove how they got it Iames Maxwel contra Adam Maxwel November 15. 1667. JAmes Maxwel and the Umquhil Lady Hiltoun his Spouse having Disponed their Land to Adam Maxwel Iames now pursues a Declarator of Trust whereupon the Lords formerly ordained Compt and Reckoning that it might appear what Adam had Expended upon the accompt of the Trust. In which Accompt Adam gives up certain Bonds by Iames whereunto he had taken Assignation against which he could alleadge no more then what he truely payed out in respect the time of the Assignation he was intrusted by the Pursuer The Defender alleadged non relevant unlesse it were alleadged he was intrusted to Compone for the Pursuers Debts but if it was only a Trust of his Land and not a general Trust of all his Affairs it could not reach their Bonds and albeit upon the account of Friendship or Charity the Defender might be desired to take no more then he gave there lyes no Obligation in Law or Equity upon him so to do but he may demand what the Creditors his Cedents or any other Assigney might demand The Pursuer answered that the intent of his Trust in his Lands being to preserve him from the rigour of his Creditors it was against that Trust to the Trusty to use the same rigour himself Which the Lords found relevant and ordained Adam only to get allowance of what he payed out Laird of Culteraes contra Silvester Chapman November 16. 1667. CVlteraes having pursued Silvester Chapman for payment of a Bond of two hundreth Merks subscribed by the initial Letters of the Defenders Name The Lords sustained the pursute the Defender being in use thus to subscribe and that he did subscribe this Bond the Notar and three Witnesses insert being Examined they proved the Defenders custom so to subscribe but as to the Actual subscribing of this Bond two were affirmative and two were negative denying their subscription Deponing that they remembred not they saw the Defender subscribe The Pursuers own Oath was also taken ex officio who affirmed the truth of the subscription and that the Witnesses insert were present the question arose whether the verity of the subscription were proven The Lords found that it was sufficiently proven the Pursuer being a man above all suspition and no improbation proponed Chalmers and Gardner contra Colvils Eodem die CHalmers and her Children pursues Hugh Colvil and others for Ejecting them out of their House and Lands of Lady kirk and spuilzy of their Goods therein the Lybel being admitted to Probation not only a Witnesse Deponed that he saw the Defender open the Pursuers Doors they being absent in Edinburgh and the Keys with them and cast out their Goods and enter in Possession who was admitted cum nota as being Interessed as Tennant and concurring with these Pursuers in a pursute with the same Defenders before the Council upon the
part to Dame Geils Moncrief who had right to a Terce thereof and to whom Mr. Patrick was only lyable and countable and for a part of the years he was her Tennent and had Right from her It was answered that the Tercer had no compleat Right till she was Served and kend to her Terce which being done after the years in question the Fiar might have Possest the whole till her Service and might have forced the Possessors to pay him so the Appryzer entring in Possession of the whole upon his Appryzing cannot pretend the Right of the Tercer and his taking Tack of her was unwarrantable till she was Served and done of purpose that his Appryzing might not be fully satisfied and so the Legal might expyre which is most rigorous and unjust and offered presently to satisfie the Tercer of her third It was answered that the Service whensoever done is drawn back to the Husbands death and doth but declare and not constitute the Wifes Right like the Service of an Heir The Lords found that Mr. Patrick could not cloath himself with the Tercers Right to cause the legal expyre but found the offer Relevant for besides the favour of the Cause the case is not alike with an appear and Heir whose Right though not declared yet he continues in his Predecessors Possession and none other hath any Interest but the Fiar might possess the whole and exclude the Tercer till she were Served Paul Henrison contra Laird Ludquharn Decemb. 22. 1666. PAul Henrison Indweller in the Island of Helgilland being at the mouth of the Elve fraughted to Scotland by Hamburgers was taken by a Privateer and declared Pryze at Peterhead by the Laird of Ludquharn Admiral Depute there whereupon he addrest himself to the Admiral Court at Leith and obtained Decreet for restoring of his Ship upon compearance Ludquharn gives in a Bill of Suspension of this Decreet and to dispatch the Stranger because it was ordained to be heard upon the Bill Ludquharn alleadged that the Admirals Decreet was unjust because he offered him to prove by Merchants in Edinburgh that Helligilland is a part of the Dominion of Denmark and albeit it be in the present Possession of the Duke of Holstein yet he holds it of the Crown of Denmark and as to that he is Subject to the King of Denmark and therefore the Inhabitants of that Island are in the state of enimity with the King and so lawful Pryze It was answered that the Stranger hath produced a Pass of Sir William Swan the Kings Agent at Hamburgh bearing that he had taken tryal and found the Ship to be free and it being notour and acknowledged that this Stranger is a Subject of the Duke of Holstein who is a Prince of the Empire and in Amity with His Majesty as is declared by a Letter of the King to the Lord Commissioner it must extend to all His present Subjects who are not oblieged to Dispute how he holds this Islands or when he got the Right thereof and his Pass bears him to be a Natural Subject of the Duke of Holsteins and not of the King of Denmark It was answered that the Right of this Island was only in Impignoration and only in Possession of the Duke of Holstein within this ten year The Lords adhered to the Admirals Decreet and Repelled the Reasons of the Bill Tweeddies contra Tweeddie Eodem die UMquhil Tweeddie of having Disponed his whole Estate to his Eldest Son at the same time his Son gives a Bond to his Mother and her Heirs of six thousand merks the Mother being dead the other five Bairns pursues a Declarator of Trust against the Heir that this was the Bairns Provision put in the Name of the Mother and offers to prove the same by the Wryter and Witnesses insert It was answered that Trust was not so probable otherwise all Rights might be inverted by Witnesses whose Testimonies our Law hath Restricted to an hundred Pounds It was answered that much more was to be attribute to Witnesses insert upon whose Testimonies the Parties condescend and confide than to common Witnesses 2dly Albeit Witnesses were not receiveable to prove Trust alone Yet where there are strong presumptions concurring they are admittable even to annul Writs of the greatest importance as is ordinarly used in the indirect manner of Improbations and here are strong presumptions viz. That the Father at the time of this Bond did Dispone to the Defender his Eldest Son his whole Estate without a Reservation of his own Liferent or any other thing and there were five Children beside who had no Provision So that albeit this Bond be conceived to the Wife her Heirs and Assigneys yet cannot be presumed to be intended to have fallen back to the Defender as her Heir The Lords in respect of the presumptions were inclinable to admit the Witnesses but they ordained the Pursuers before answer to what could make a sufficient Probation to adduce such Witnesses as they would make use of for astructing these Presumptions and the Trust. Iames Hoge in Edinburgh contra Iames Hoge in Dalkeith Ianuary 2. 1667. JAmes Hoge in Edinburgh pursues a Declarator of Redemption agaist Iames Hoge in Dalkeith who alleadged Absolvitor because the whole sum contained in the Reversion was not Consigned It was answered there was Consigned the equivalent viz. A Decreet against the Defender for a Liquide sum which behoved to compense It was answered that Reversions being strictissimi juris Compensations are not to be admitted therein otherwayes Wodsetters may be much prejudgeed by taking Assignations from their Creditors and Consigning the same and frustrating them of their Moneys which they had designed for other Creditors and other uses It was answered that this was no Extrinsick Compensation but a Decreet founded upon an Article contained in the Contract of Wodset Upon which consideration the Lords Sustained the Order and Declared Earl of Murray contra Iohn Hume Eodem die THE Earl of Murray pursues Hume his Tennent to find Caution for his Duties or else to Remove Who alleadged Absolvitor because the Earl was Debitor to him in a Sum exceeding all the bygone Rents and this Action hath no place but when there are some years Rent Resting It was answered That the Defender was at the Horn and his Escheat taken and so was manifestly vergent ad inopiam The Lords would not Sustain this Member unless bygones had been owing but Superceeded to give answer till the Compensation were proven Francis Hamiltoun contra Eodem die FRancis Hamiltoun having Suspended a Decreet obtained against him for House-mails on this Reason that his Wife only took the Tack which could not oblige him It was answered that his Wife keeping a publick Tavern was evidently praeposita huic negotio Which the Lords Sustained Another Reason was that the House became insufficient in the Roof and the Defender before the Term required the Pursuer to Repair the same which he did not and the Neighbouring House called
at all probable by Witnesses The Lords found the Disposition null and that the subscription of these two Notars not bearing that it was by Command could not be supplied by the Witnesses insert unlesse it had been the subscription of an Connotar Subscribing at the same time with a Notar whose Subscription bore Command Here it was Debated whether the Subscriptions of Notars at divers times were sufficient or if the Subscription of a Notar who was not authorized by the English and did forbear to Act at that time were sufficient but the former Vot made these to be undecided as not necessar seing the Writ was annulled by the former Vot Sir George Prestoun contra Sir Iohn Scot Iuly 1667. SIr Iohn Scot having pursued for payment of an Annualrent of 500. Merks out of Sir Iohn Prestouns Lands he alleadged payment thereupon Liâ—â—scontislation being made he produces three Receipts each 500 pounds bearing to an Accompt and alleadged that the odd fifty Merks was for publick Burden which compleating three years must Assoilzie from bygones It was answered the Discharges bore to be but granted by a Factor which was not probative and that they wanted Witnesses and that being given by a Factor they could not infer payment of all proceeding It was answered that Discharges of Annualrents or Rents are sufficient without Witnesses The Lords found that Discharges to Tenents were suffiâ—ient without Witnesses but not being granted by an Annualrenter to an Heretor and found that the Factors Discharge could not inâ—er payment of bygones The Owners of the Ship called the Castle of Riga contra Captain Seatoun Eodem die CAptain Seatoun a Privateer having taken a Ship at Sea she was declared Pryze at Cromarty the Owners pursue Reduction of that Decreet before the Admiral at Leith who Assâ—â—â—zied from the Reduction and adhered to the Dâ—creetâ— the Owners now pursue a Reduction of both these Decreets upoâ— this Ground that by the Treaty betwixt the King and the King of Sweden it is expresly declared that if any Swedish Ships having a Passe from the Kings Council or Colledge of Trade or Governour of the Province where frae she Louseth she shall not be questioned nor any Inquiry anent the Goods or Men and that because by the said Treaty it is Agreed that the said Passes shall expresly contain that the Ship and whole Goods belonging to the Subjects of Sweden contained no Counterband Goods and that upon Oath taken at the obtaining of the Passe na est the Governour of Livinia wherein Riga lyes hath given a Passe bearing that the Owners of the Ship called the Castle of Riga being Citizens of Riga did make Faith that Ship being then at Amsterdam did truely belong to them and was Loaded with their Goods only and was direct to France for a Loading of Salt to be returned to Riga and that there is produced an Extract out of the Admirality of â—rance bearing Faith to have been made that the Ship nor Goods nor any part thereof did not belong to the French nor Hollanders and a Certificat from the Swedish Resident in Holland Registrat in the Office of Admirality in England bearing this Ship to be a ship belonging to the Swedes and yet she was declared Pryze upon this ground only that the Sea-men did acknowledge they were Inhabitants in and about Amsterdam and that some of them Deponed that the ship was a Dutch bottom and one of them Deponed that they were paved by the Skipper who received the Money from a Water Bailzie in Amsterdam without proving that the ship or goods belonged to Hollanders which could not have been ground seing the Passe and Treaty did Exeem them from giving an Accompt or Inquiry anent their Mariners It was answered for the Defenders that all these Passes and Papers were a meer Contrivance and â—alls not in the Case of the Treaty because the ship Loused not from Riga but from Amsterdam and the Pass did not contain the particular Goods and Quantities according to the Conditions of the Treâ—ty and that the Testimonies proved that the ship had on a Dutch Flag that she came hot by the Channel but about the Back side of England and that the Company was afraid to meet with Scotish and English Privateers and having met with a ship in their Course asked for the Dutch Fleet calling it their own Fleet all which were strong Evidences that the ship belonged to Holland It was answered that albeit the Pass mentioned not the particular Goods which it could not do the ship being but to be Loaden the Certificat did abundantly supply that expressing the Loading as for the presumptions they are of no force because the Skipper though a Dutch-man yet was sworn a Citizen of Riga and might justly be more afraid of the English and Scots then of the Dutch and they might call the Dutch Fleet their own Fleet as being of their Nation at last they produced a Letter of the Kings bearing that His Majesty knew by sufficient Information that this was a ship belonging to Sweden and both by it and by a former Letter did peremptorly Command the Delivery thereof and the Goods It was answered the Kings Letter was impetrat upon false Information and if His Majesty had known the true state of the Case as it now stands in the Evidence He would not have so Written nor doth His Majesties Letter granted inaudita parte prejudge the privat Rights of his Subjects The Lords found that the Testimonies of the Witnesses did not prove that the ship and goods belonged to any of His Majesties Enemies and therefore in respect of the Pass Certificat Treaty and His Majesties Letter they Reduced both the Decreets Iuly 31. 1667. THis Cause being again Debated it was alleadged that the former Interlocutor having proceeded mainly upon His Majesties Letter there was no ground to proceed thereupon because it was granted inaudita parte and Acts of Parliament being done by His Majesty without consent of of Estates prejudge no party as to their privat Right but such as are called much less Letters thus impetrat upon importunity and groundless Representation and this Letter is Derogat by a posterior general Letter to the Lords Recorded in the Sederunt warranding the Lords to proceed And as to the Swedish Treaty it can never be understood further then as to Counterband Goods which are the Native Commodity of the Swedish Dominions for albeit some of these be dispensed to the Swedes because most of the Growth of their Countrey is such yet it cannot be extended to this Case where the Swedes Loadned Counterband Goods in Norway and carry them to France both being His Majesties Enemies neither can the Pass be sufficient except as to such ships as are within Sweden and where the particular Goods upon Oath are Attested and expressed in the Pass neither of which is in this Case It was answered that they opponed the former Interlocutor and that a solemn Treaty with so considerable an Allie
the Subvassal can hinder the Superior to declare the Recognition of his immediat Vassal The Lords Repelled the Defence and Sustained Processe Captain Mastertoun contro the strangers of Ostend February 24. 1668. CAptain Mastertoun having taken a Ship of Ostend Pryze obtained her Adjudged before Ludquharn Admiral Deput of Peterhead The Strangers pursued Reduction before the High Admiral at Leith and obtained Sentence because the Decreet at Peterhead and Warrands thereof were not produced by which Sentence there was Decerned 16000. Dollars for the Ship and Loadning which was Fish taken in Island Mastertoun raises Reduction of the High Admirals Decreet on this ground that it was meerly in absence and proceeded without valuing the Ship or Goods and offered to restore the Ship or value and what he got for the Fish which was but a Dollar the Barrel in regard they spoilled the time of the dependence of the Plea and craved allowance of what he payed to the King being the fifteenth part and the tenth part to the Admiral and alleadged he could be lyable for no more nor quantum lucratus est seing he did bona fide bring up this Ship finding Aboard a Pass from the Magistrats of Ostend which was defective not conform to the Articles of Treaty with the King of Spain in so far as it bore no mention of the Sailers that they were the King of Spains Subjects and the Sailers did Depone that they did belong to Zurickzea under the States of Holland and albeit now ex post facto he is informed that they did reside sometime in Ostend yet he being in bona fide can be lyable in no more nor what he got It was answered for the Strangers that it being acknowledged that the Goods or Persons were free it cannot be denyed in Justice to restore them to their Ship and true value of their Goods that they might have made thereof in Ostend and not the price thereof that the Captain made for seing he acknowledges that they were corrupted for want of Salt it was his own Fault for he should have caused raise the Fish in the Barrels and Salted them again and as for the King and Admirals part there is no reason to allow the samine and put the Strangers to a Processe against the King and Admiral but if it be just he have restitution of his Goods he must have it of his whole Goods at the same availls as he could have sold them with his Damnage and Interest and any pretence of bona fide's can operat no more but to free him from a spuilzy and the Pursuers Oath in litem for the value and profits and to restrict the Process to wrongous Intromission to the true prices and true Damnages It was answered for the Captain that seing he was in bona fide to seize upon the Ship and seing he did obtain Decreet from the Judge Ordinar he was also in bona fide to sell and roup the Goods as they gave at Peterhead and it does not appear that there was Salt there for Salting them again nor Men that had skill nor could they medle with them till Decreet was pronunced which was a long time they were also in bona fide to pay the King and Admiral neither are the Kings Officer nor Admiral Cited but only the Admiral Deput The Lords found that seing the Pass did not bear the Sailers to be the King of Spains Subjects conform to the Articles that the Captain was in bona fide to bring her up and found him free of any Damnages and found him lyable for the price of the Ship and Fish as they might have been sold at Peterhead by rouping as use is if they had been preserved and found him obliged to have preserved them and repelled the alleadgeance as to the tenth and fifteenth but prejudice to the Captain and Owners to seek repetition thereof and found no necessity to Cite the Admiral his Deput being Cited Merchants of Hamburgh contra Captain Dishingtoun February 25. 1668. CAptain Dishingtoun having taken a Merchant Ship of Hamburgh and obtained her to be declared Pryze the Hamburgers raises Reduction on this Reason that the only ground of declaring her Pryze was because she carried Counterband Goods towards the King of Denmarks Domissions being then in Enmity with the King which was no relevant ground because it is evident the Ship was seized a Moneth before the proclamation of War against the Danes It was answered for the Captain that it is not the proclamation of War that makes the War for the Kings Declaration is only to give an account to the World upon what account the King had made War with the Danes and it is notour that there were frequent Acts of Hostility both by the Danes and against the Danes before this Capture It was answered for the Strangers that publick denunciation makes only a publick and lawful War but whatever might have been done against the Danes the Hamburgers being the Kings Allies and Friends were not obliged to know the same until such time that the proclamation of War might come to their Ears so that they have done no Fault being in bona fide to continue their Trade until the War was made publick to the World It was answered for the Captain that he was in optima fide to execute the Kings Commission bearing expresly to make Pryze of all carrying Counterband Goods to the Danes and therefore he could not be Decerned as praedo but the most can be Decerned against him though the Pursuer should be found to have been in bona fide to Trade with the Danes is to restore in quantum lucratus est but so it is that he made no profit for after the Capture he being pursued at Sea by the Enemy was forced to leave the Ship in question being Loadned by him whereby she was driven a shore and suffered Ship-wrack The Lords found that the Hamburgers were in bona fide to continue their Trade with Denmark and to carry to them Counterband Goods at the time of the seisure and therefore Reduced the Admirals Decreet as to the Restitution of the Ship and Goods or what profit the Defender made of them but for no higher value nor damnages in respect the Captain was in bona fide to execute the Kings Commission unlesse it were alleadged the Captain was in culpa in the losse of the Ship or misprising the Goods Lord Almond contra Thomas Dalmahoy Eodem die THe Lord Almond pursues a Declarator of the Escsheet of Thomas Dalmahoy who alleadged Absolvitor because he was Denunced upon a Bond granted by the Dutchess of Hamiltoun wherein he being only Charged as Husband for his interest and Denunced at the Mercat Crosse of Edinburgh and Peir and Shoare of Lieth being then Residenter in England and now the Marriage being dissolved by the Dutchess Death his Interest â—eâ—seth as to all effects and so as to this Horning 2dly The Denunciation being upon a Bond due to the Dutchess own
accordingly hoc judicio he was not obliged to Dispute any anterior Possession Which the Lords found Relevant Hans Iurgan contra Captain Logan July 23. 1667. CAptain Logan a Privateer having taken Hans Jurgan Citizen of Lubeck obtained his Ship and Goods adjudged Prize by the Admiral upon this ground that he had carried in Prohibit or Counterband Goods to the Danes being then the Kings Enemies viz. Hemp and Victual and that he was taken in the return of that Voyage which was instructed by the Oaths of the said Hans and Sailers Hans raises a Reduction of the Admirals Decreet on these Reasons First That the Victual was no Counterband Goods but such Goods as the King allowed his own Subjects to Export out of England and declared that there should be no question thereupon nor upon any Goods not enumerat in an Act of Council produced all which are bellicus Instruments and Furniture and hath nothing of Victual and albeit Hemp be Prohibit by that Act and commonly counted Counterband Goods yet the quantity Deponed was only sixteen Stones which is an unconsiderable quantity and necessar for Calfing the Ship and Sowing the Sails 2ly The Pursuer produced the Duke of York his Pass Warranting this Ship to come from Bergen and therefore she could not have been taken in her return by any Privateer 3ly Whatever might have been alleadged if the Ship had been taken having unfree Goods in her there is neither Law nor Custom to sease upon the Ship in her return when these Goods are not in her for the Shâ—p might have been sold to another then he that did the wrong and it cannot appear whether the return was made out of the price of the former Fraught and though it were it might be of a hundreth times more value And albeit such seasures in return were allowable yet they could only be sustained when it is evident at the time of the Seasure at Sea that the Counterband Goods had been in the Ship that Voyage either by Bills of Loading Charter parties or other Writs taken in the Ship or by the Oâ—ths or acknowledgements of the Company otherwise upon that pretence Freedom of Commerce would be altogether stopped seing every Ship might be brought inâ— that they may be tryed by the Admiral whether or not they had in Counterband Goods that Voyage 4ly These Strangers could not be in culpa before the Indiction of the War could come to their Ears but the Indiction of the War was by the Kings manifesto of the Date the ninteen of September 1666. and this Ship Loosed from Lubeck the 24 of September within five days after and so could not possibly know the Indiction and they Trading bona fide as they were formerly accustomed cannot be seased as injuring the King in assisting his Enemies and they did nor could not know they were such It was answered for the Defender that he had walked exactly according to his Commission bearing expresly all kind of Grain to be Counterband Goods and being impowered to sease upon any Ship in return that had carried in Counterband Goods and that it was in the Kings power leges imponere bello and that Victual is Counterband Goods it is evident not only because it is the first necessary in War especially for Victualling of Ships Norway being a barren Countrey that hath little Grain of its own and produced a Treaty betwixt the King and the Crown of Sweden wherein the Swede hath a liberty to carry Counterband Goods bearing expresly in the Latin Annâ—na in the Dutch Proviant which shows what Goods are accounted Counterband Goods not only by the King but other Nations and for this Seasure in the return it is not only warranted by the Commission but upon evident Reason because the Kings Allies have free Trade both with Him and his Enemies so that they partake not with his Enemies against Him by furnishing them Instruments or Furniture of War and any privat Party transgressing the same might de rigore juris be seased upon as an Enemieâ— and it is favour and benignity that the seasure is allowed only in that very Voyage in which the wrong is done As to the Duke of Yorks Passe Scotland being a free Kingdom and the Duke not Admiral of Scotland his Passe or passing from any Delinquents can only be Operative in England and that which is produced is only an Extract out of the Admirality Court bearing that such a Ship was Cognoseed to be a Lubeck Ship and so that she might freely passe which cannot import the Dukes knowledge much lesse his passing frae her carrying of Counterband Goods as to the pretence of Trading bona fide and the ignorance of the War no respect ought to be had to the alleadgeance because the War was begun and flagrant long before the Lousing of the Ship and there is no necessity of Manifesto's to indict War but Acts of Hostility and publick fame of a War are sufficient to hinder Allies of either Parties or Neuters to assist against their friends and here it s offered to be proven that six Moneths before this Ship Loused many Commissions were granted against the Danes Prizes taken and the Kings Subjects taken by the Danes and declared Pryze at Bergen upon the account of the War which must be presumed to be known by the Pursuer and the City of Lubeck being a Hanse Town of Trade which keeps Intercourse with London and other Towns of Trade and as to the Act of Council permitting the Kings Subjects to Trade even in Corn with his Enemies it is a special Indulgence in Favours of England only and could not be effectual as to Scotland and much lesse to Strangers The Pursuer answered that there Was nothing alleadged to show by Law or custom that Victual is Counterband Goods unlesse it were carried in to an Enemy for Relieving a Besieged place but not when it is but in common Commerce and if the Lubeckers be hindred to Trade in Corn or the like being the only Growth of their Country their Trade is altogether marred contrary to the Kings Interest and Intention who has written to the Emperour most favourably in behalf of the Hanse Towns for the freedom of their Trade and acknowledges them his good Allies and not meerly Neuters which Letter is produced neither is the palpable inconvenience answered if Privatteers may bring in all the Ships whether they carried Counterband Goods in that Voyage though they find none in them neither is there any thing alleadged sufficient to instruct that the Pursuers knew or were obliged to know of the War betwixt the King and Denmark before they Loused from Lubeck for any Acts of Hostility before the solemn Indiction produced were such Deeds as the Pursuers were not obliged to notice for the taking and declaring of Prizes doth not include Enimityâ— or War but may be for reparation of privat injuries without intention to make an open War although a Pryze of the King of Britains Subjects had
been declared at Buirran it does not infer that Lubeck being a free State at so far distance behoved to know the same much lesse that thereby there was a War betwixt the King and Denmark The Lords having considered the whole Debate were of different opinions whether the Victual could be called Counterband Goods simply or only when imported for relieving of Sieges or for the like War-like use and whetheâ— Ships could be seised in their return not having actually Counterband Goods in but especially whether they could be seised without evidence at the time of the seisure at Sea that in that Voyage they had in Counterband Goods but they did only Determine the first Reason and found it relevant to infer that the Lubeckers was in bona fide to continue the Commerce having Loused within to few days of the Kings Manifesto and that no other Act of Hostility before were to be presumed to have come to the knowledge of Lubeck or that thereby they were obliged to know that there was an actual War unlesse these Strangers knowledge were instructed by their own Oaths or that it was the common Fame notour at Lubeck before they Loused that there was War betwixt the King and Denmark and the Defenders offering to prove the same The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception and in the mean time ordains the Strangers Ship and Goods to be Inventared and Estimate and delivered again to the Strangers upon Caution to make the same or price forthcoming in case the Defender prov'd and prevail'd and with the burden of the Strangers damnage and expences if they betook themselves to this manner of Probation and not to the Oaths of the Strangers who were present reserving to the Lords the remanent Points to be Decided if the Strangers knowledge of the War were known In this Processe the Lords found also that competent and emitted before the Admiral could not operat against thir Strangers qui utuntur communi jure gentium Sir Harie Hume contra Tenents of Kello and Sir Alexander Hume Iuly 23. 1667. SIr Harie Hume having Comprized the Lands of Kello compearance is made for some Annualrenters who craved preference because their Infeftments of Annualrent was before the Apprizing It was answered that the Infeftment of Annualrent was base never cled with Possession It was answered for the Annualrenter that he produced an Antaphocha bearing the Receipt of a Discharge granted by the Debtor of the Annualrent which did instruct the Annualrenter was in Possession before the Apprizing by uplifting the Annualrent from the Debtor It was answered that the Sum was of fourscore Merks which was far within an Terms Annualrent and that it related only to the personal Bond and not to the Infeftment and that there was more then this Sum due of Annualrent by the personal Bond before the Date of the Infeftment to which only it behoved to be imputed It was answered that the Receipt being general in part of payment of the Annualrent he that payed the Sum might impute it to what Term he pleased and so would impute it to a Term after his Infeftment It was answered that before that Discharge the Pursuers Apprizing was led though no Infeftment thereon after which so small a part of the Annualrent could not be impute to any but the first Annualrent due and could not validat the base Infeftment The Lords found it sufficient to validat the base Infeftment notwithstanding of what was alleadged on the contrair Sir George Mckenzie contra Iohn Fairholm Iuly 25. 1667. SIr George Mckenzie Advocat having formerly pursued Reduction of a Bond granted to Umquhil Iohn Fairholm wherein he was Cautioner for his Father and Pluscardy upon this Reason that he then being Minor intertained by his Father as in his Family his Father was his Administrator and in place of a Curator so that Deeds done without his Fathers authorizing as Curator was null neither could his Father authorize him to his Fathers own behove as Cautioner for his Father which the Lords found relevant to annul Sir George's Subscription and now Sir George desiring the Extract of the Interloquitor It was further alleadged that Sir George was not only Cautioner for his Father but also for Pluscardy and that his Father might authorize him to Subscrive Cautioner for Pluscardy and therefore the Bond behoved to stand against him as Cautioner for Pluscardy It was answered that albeit his Father might authorize him as Cautioner for Pluscardy in a Bond apart wherein his Father was not concerned yet if his being Cautioner to Pluscardy were to the behove of his Father he could not authorize him therein but this Bond is of that nature for Pluscardy and the pursuers Father being bound Conjunctly and Severally Caution adjected for any of the correi debendi could not but be to the behove of both because in so far the Obligation was strengthned and the payment made by the Cautioner would liberat both and if Sir George should be Decerned Cautioner for Pluscardy it would Liberat his Father and so is clearly to his behove In respect whereof the Lords repelled also this new Defense and adhered to their former Interlocutor and found Sir George's Subscription for his Father and for Pluscardy to be to his Fathers behove and that he could not authorize him therein neither did he at all directly authorize him but in so far as they both Subscrived as Principal and Cautioner in one Bond. Mr. Iohn Philip contra Mr. Iohn Cheap Iuly 26. 1667. MAster Iohn Philip pursues his Tenents upon a Disposition granted by Michael Philip Compearance is made for Mr. Iames Cheap who Apprized from Michael Philips Heir who alleadged that the Disposition is null neither being Subscribed by the Disponer nor by two Notars for him for albeit it mention the Subscription of three Notars yet two of them Subscribed not at the same time with the third and neither of these two bear that they did Subscribe at command but that they Subscribed only for Michael Philip because that he could not Subscribe himself and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars yet it is written with another Ink and does not appear to be Written at the time of the Subscriptions being the Hand-writ of him that Wrote the Body which mentions to be Written by him at Edinburgh and the Subscription is at Newburgh and because the Notars Subscription must give Faith to the Body of the Writ and not the Body to it It was answered that they offer to prove by the Witnesses insert that the Command was given It was answered that the Command being the most substantial point of the Subscription could not be proven or supplied by Witnesses for the Subscription of the Notar because the party could not Subscribe signifies nothing without the Command of the party for whom they subscribe and Warrand or Command in most ordinary Matters is not