THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with 〈…〉 It hath been looked upon as the priviledge of Judgesâ— to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâ—eth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
to you the Subjects of the Kings of Spain and Sweden with whom we have particular Treaties which We shall send to you And wâ—ose Ships and Goods are to pass free they having such Passes as are agreed upon of which We did send Copies to Our Privy Council and so We bid you Farewell Given at Our Court at Whitehall the twenty seven day of December One thousand six hundred sixty and six And of Our Reign the eighteen year By His Majesties Command Subscribed thus LAUDERDAIL VVarrand for General Letters for the Contribution due out of Benefices to the Lords November 17. 1668. THE Lords have Ordained and hereby Ordain Letters and Executorials of Horning to be Direct at the Instance of these Ordinary Lords who have been admitted since Iune 1663. or shall be admitted hereafter against the Arch-bishops Bishops Priors Heretors Liferenters Feuars Farmers Tennents and Tacksmen of the Prelacies within this Kingdom for payment to them of their respective proportions of the Contribution Money payable out of the saids Prelacies and Allocat to their Predecessors in whose place they have succeeded by an Act of Sederunt of the date the 11. day of Iune 1663. and a Roll subjoyned thereto containing the particular division of the Contribution Money amongst the saids Lords and that for all Years and Terms since their admission and Entry and Yearly and Termly in time coming Oaths to be taken for the Price of Fowls Ianuary 15. 1669. THE which day It being represented to the Lords That the Magistrates of Edinburgh desired to know whether they might warrantably exact the Oaths of the Poultrie-men and In-keepers concerning their contravention of the Acts lately made for the price of Fowl drest and undrest The Lords finds that the Magistrates of Edinburgh may and ought to exact the Oaths of the contraveeners of these Acts either the Poultrie-people who sell the Fowls undrest or In-keepersâ— who sell them drest And recommend to the Magistrates to be careful in the speedie and exact execution of these Acts. ACT anent extracts of Registrate writs bearing the Procurators named though not subscribed December 9. 1670. THE Lords of Council and Session do grant warrand to the Lord Register and the Clerks of Session his Deputes to registrate such Bands Contracts and other Writs as shall be given in to them to be registrat and therein to insert the consent of Advocats as Procurators to the Registration as they were in use to do formerlyâ— and accordingly to give out extracts thereof notwithstanding that the Advocats do not subscrib their consent And appoints this warrand to continue untill further order Likeas the Lords declare that any Extracts given out by the Clerks in manner foresaid since the first day of November last are warrantably given and cannot be quarrelled upon that ground that the Advocats consent to the Registration is not subscribed ACT Anent Extracting Acts and Decreets Ianuary 20. 1671. THE Lords enacted and ordained that no Act or Decreet done either in the Inner or Utter-house shall be extracted untill 24 hours elapse after the same is read in the Minut Book ACT against Magistrats of Burghs forletting prisoners for Debt go out of the tolbooth Iune 14. 1671. THE Lords considering That albeit by the Law Magistrats of Burghs are oblidged to retain in sure warde and firmance Persons incarcerat in their Tolbooths for Debt Yet hitherto they have been in use to indulge Prisoners to go abroad upon several occasions And it being expedient that in time coming the foresaid liberty taken by the Magistrates of Burghs should be restrained and the Law duely observed Therefore the saids Lords do declare that hereafter it shal not be lawful to the Magistrates of Burghs upon any occasion whatsomever without warrand from His Majesties Privy Council or the Lords of Session to permit any Person incarcerat in their Tolbooth for Debt to go out of Prison except in the case of the Parties sickness and extream danger of Life The same being always attested upon oath under the hand of a Physician Chirurgion Appothecary or Minister of the Gospel in the place Which Testificat shall be recorded in the Town Court Books And in that case that the Magistrats allow the Partie only liberty to reside in some house within the Town during the continuance of his sickness They being always answerable that the Partie escape not And upon his recovery to return to Prison And the Lords declare that any Magistrats of Burghs who shall contraveen the premisses shall be lyable in payment of the Debtsâ— for which the Rebel was incarcerat And appoints this Act to be intimat to the Agent for the Royal Burrows and to be insert in the Books of Sederunt His MAJESTIES Order to the Commissioners of His Thesaury to free the Lords from the Cess Iuly 19. 1671. CHARLES R. RIght trusty and well beloved Cusing and Counciller right trusty and well beloved Councillers and trusty and well beloved We greet you well Vpon the humble desire of President and Senators of Our Colledge of Iustice Signified unto Vs by Our Secretary We have thought fit to express Our so great tenderness of their Priviledges as to discharge the President and all the ordinary Lords of Session of their proportions of the Currant Supply granted unto Vs by the late Session of Our Parliament although they gave their Bond for the same Therefore Our pleasure is and We do hereby Authorize you to give Command nor to exact any of the said Supply from the proper states of the said President and ordinary Lords of Session but that the same be discharged And if any part thereof be already Collected that it be payed back to them respectively for which this shall be your warrand And so We bid you heartily Farewell Given at Our Court at Windsor Casile the 12 day of Iuly 1671. and of Our Reign the 23 Year Subscribed thus by his Majesties command Lauderdail ACT for keeping the Barrs November 3. 1671. THE Lords of Council and Session considering that there is great disorder and confusion occasionâ—d by the thronging in of the Advocats men and others upon the Clerks and their Servants in the Utter-house before the ordinary Lord go to the Bench. And after twelve a clock at the reading of the Minut Book For remeid whereof they ordain the Minut Book in time coming to be read in the nethermost end of the Loft appointed for the Advocats Servants And prohibit and discharge all Advocats Servants and other persons who are not licenced and allowed to enter or remain within the Innermost Barr of the Utter-house where the Clerks and their Servants stays under the pain of three pounds Scots to be applyed the one half for the use of the Poor and the other to the Macers And to be further censured by imprisonment or otherways as the saids Lords shall think sit And to the end the said Act may be more duely observed The Lord do ordain authorize and require the Macers to exact
subscribed but by one Nottar and by one subscribing Witness there being more Witnesses insert in respect that Marriage followed thereupon Lord Couper contra Lord Pitsligo Iuly 3 1662. THE Lord Couper alleadging That being sitting in Parliament and taking out his Watch to see what hours it was he gave it to my Lord Pitsligo in his hand and that he refuses to restore it therefore craves to be restored and that he may have the Value of it pretio affectionis by his own Oath The Defender alleadged absolvitor because the lybell is not relevant not condescending quo modo the Defender is oblidged to restore for if the Pursuer insist upon his Real Right of the Watch as proprietar the Lybel is not relevant because he subsumes not that the Defender is possessor or haver of the Watch at the time of the Citation or since or at least dolo desijt poisidere or if the Pursuer insist upon a personal obligation he ought to subsume that the Defender borrowed the Watch or â—ook the custody thereof and thereby is Personally oblidged to keep and restore Secondly albeit the Lybel were relevant absolvitor because the Defender offers him to prove that the Pursuer having put his Watch in his hand as he conceives to see what hours it was The Defender according to the Ordinar Civillity they being both sitting in Parliament The Lord Sinclar putting forth his hand for a sight of the Watch The Defender did in the Pursuers presence put it in his hand without the Pursuers opposition or contradiction which must necessarily import his consent and liberat the Defender The Pursuer answered that he did now condescend that he lent his Watch to the Defender and that there was betwixt them Contractus commodati because the Defender having put forth his hand signifying his desire to call for the Watch. The Pursuer put the same in his hand and though there was no words yet this Contract may be celebrat by intervention of any signe of the Parties meaning which here could be no other then that which is Ordinar to lend the Defender the Watch to see what hours it was which importeth the Defenders oblidgment to restore the same To the second Defense non relevat because the Defenders giving of the Watch to the Lord Sinclar was so subit an Act that the Pursuer could not prohibite specially they being sitting in Parliament in the time and therefore in that Case his silence cannot import a Consent The Lords sustained the Lybel and repelled the Defence but would not suffer the price of the Watch to be proven by the Pursuers Oath but pro ut de jure Agnes Peacock contra Mathew Baillie Eodem die AGnes Peacock as Executrix to her Husband having pursued Mathew Baillie for payment of a Sum of Money he offered to prove payment and at the Term produced a Discharge whereupon the Pursuer took Instruments of the Production and offered to improve the same and craved that the Defender might be Ordained to Compear Personally and bide by the same and a Term being Assigned for that effect and the Pursuer Ordained to consigne a Pand in case she secumb in the Improbation and an Act Extracted thereupon The Defender coming from the Country and appearing Personally The Pursuer alleadged the Discharge is null wanting Witnesses The Defender alleadged non Competit in this state of the Process after the exception of Falshood quae est exceptoinum ultima but if the Defender had alleadged the same at the production The Defender would have replyed that it was Holographon and excluded any Improbation The Lords found the Exception of nullitie not competent in this state of the Process Allison Kello contra Paxtoun Eodem die IN a Process betwixt these Parties an exception having been proponed The Lords before answer Ordained the Proponer to produce the Writs with certification that the Defense should be holden as not proponed in termino certificatione being craved an Incident was produced because the Writs were the Proponders Authors Writs and in their hands It was answered that the Incident was not competent there being no litiscontestation It was answered that it was most competent wherever there was a certification as in Acts in Reduction and Improbation The Lords found the meaning of such Acts and Certifications to be only that the Parties should produce their own Writs they would make use of and such of their Authors Writs as they had the time of the Act and that the other Partie might have their Oath thereupon if they pleased and therefore refused the Incident Rentoun of Lambertoun contra Earl of Levin Eodem die LAmbertoun having intented an Improbation of Lands alleadged subscribed by his Father in Favours of the Umquhile Countess of Levin and her Daughters and others and having proceeded to the indirect manner Articles of Probation and Improbation were given in Writ hinc inde and a full Dispute thereupon and all such Witnesses examined as either Partie craved The Lords having Perused and Read the whole Process did upon the Defenders desire allow them to be heard viva voce and both Parties compearing The Pursuer referred the Dispute to the Lords without saying any further And the Defenders having related the Case and Debated in General anent the taking away of Writs by Presumptions and Conjectures and having entred to Repeat all that was in the written Dispute and to answer every alleadgance The Lords declared that it was not their meaning that the Dispute should be repeated but the material and weighty points which the Defender thought of most importance to have been resumed and urged shortly Referring to the rest the Lords Therefore they Ordained the Defenders to order their alleadgences as they might for all that they had to say betwixt ten and twelve the nixt day without any further unlesse the Pursuer answered Thomson contra Mackitrick Eodem die THomson and Mackitrick having Apprysed some Tenements in Drumfriese Mackitrick the first Appryser insists for Mails and Duties Thomson alleadged Mackitrick's Seasin was null as being within Burgh Royal and not given by the Baillies and Town Clerk of the Burgh conform to the Act of Parliament The Pursuer answered that his Seasin was given by the Provost and by a Nottar whom he imployed as Town Clerk not only in that but in several other Acts and that because the Town Clerk was excluded from his Office for not taking of the Tender and upon the same accompt there was no Baillie so that to compleat this Legal Diligence he was necessitat to take Infeftment by the Provost which is sufficient in such Cases because though the Act of Parliament mention the Baillies of the Burgh that it is in opposition to Baillies in that part but cannot be understood in opposition to the Provost who has Majorâ—m Iurisdictionem quia majori inest minus and offers them to prove that he was Provost at least habitus reputatus Provost and that he did imploy his
Wines at that time gave 20. pound Sterling and not the second because it was an exception of Compensation and relative to Writ The Lords sustained the first member of the quality but rejected the second and found it relevant to be proven by way of exception Goldsmiths of Edinburgh contra Robert Haliburton December 10 1664. THe Goldsmiths of Edinburgh having obtained Decreet against Haliburton as Heir to his Father He suspends upon this Reason that the Goldsmiths confirmed themselves Executors Creditors to his Father and must allow the Inventar which either they have in their hand or at least should have done Diligence therefore It was answered for the Executors that they being Executor Creditors are not lyable for Diligence having Confirmed but to their own behove for their payment and as Creditors may arrest apprize and do all Dilligence severally the one but prejudice of the other so may they Confirm 2ly They found that having Confirmed in Edinburgh whereas the Defunct lived and died within the Diocie of Glasgow that therefore their Title was null and therefore did not proceed And lastlie oppons their Decreet in foro The Suspender answered that they can never object against the nullity of their own Title 2ly All that time there was no Commissioriat Constitute for the Shire of Air where the man died and so Edinburgh was communis patria The Lords having Debated the general case whether Executor Creditors were lyable for Diligence waved the same but found that in this Case in respect of the questionableness of a Title they would not find them lyable upon their negligence Lyon of Muirask contra Sir Robert Farquhar Eodem die MVirask having pursued a Declarator of Redemption of the Lands of Balmellie against Sir Robert Farquhar Litisâ—ontestation was made in the Cause wherein the Order was sustained proceeding upon an Adjudication against Sir Iohn Vrquhart as Heir to his Goodsire and it was offered to be proven that he died in the Right of the Reversion of this VVodset which was but base and holden of the granter for proving whereof his Charter was produced bearing the Barony of Craigfintrie and Balmellie per expressum At the advising of the Cause It was alleadged that the Defender having protested for Reservation contra producenda It is now instantly verified that the Grand-Father died not in the Right of the Reversion but that he was denuded by Disposition to his Son instructed by his Charter produced The Pursuer answered that he opponed the state of the Process And if such a Defense were now competent it ought to be Repelled because he hath Right from Sir Iohn Vrquhart who is Heir Served and Retoured to his Father in whose favours his Grand-father was Denuded and has declared that he consents to the Declarator upon that Ground and Renounces all other Right The Defender answered that the order having been only used upon the Adjudication from Vrquhart as Heir to his Grand-father if that be excluded albeit the Pursuer have another Right he must use the Order de novo and redeem thereupon 2ly Sir Iohn Vrquharts Right produced Renounces but does not Dispone any Right to the Pursuer The Lords having considered the state of the Process found that a Reply instantly verified is receiveable post conclusum in causa unless it were alleadged to have been known to the Proponer and dolose omitted by which the Pursuer might be put to a Duply suffering new Probation But the Lords found that the Charter produced bearing the Grand-father to be Denuded did not instantly verifie because it expressed not Balmellie and would not allow a Term to prove part and pertinent It was further alleadged by the Defender no Declarator till the Sums consigned were reproduced at the Bar especially seing it was offered to be proven that the Pursuer lifted them himself and he being at the Bar it is instantly verified The Lords sustained the same and Declared the Sums being Reproduced before Extract and that the Pursuer shall be lyable for Annualrent or the Wodsetter shall retain the Duties effeiring thereto Lord Rollo contra His Chamberland December 13. 1664. THe Lord Rollo having pursued his Chamberlain for Intromissions conform to a particular accompt libelled The Defenders have compeared offered to prove he was Discharged which was found relevant and now producing the same it proves but for a part whereupon the Pursuer craved Sentence for the rest It was alleadged for the Defender that there was nothing produced to instruct the Intromission The Pursuer answered that the Defender having made Litiscontestation upon a Discharge without denying the Intromission he has acknowledged the Libel and the Pursuer cannot be put to prove the same without inverting the Order and making two Litiscontestations in the same Cause The Defender answered that this being but an omission of the Advacats or Clerks of a thing palpable the Lords might repone the Defender The Lords adhered to the Act of Litiscontestation but referred to some of their number to move the Parties to what was equitable and it was thought that if the Defender would alleadge that he was not Intrometter for these particulars but that they were in the Pursuer or his other Chamberlains hands and were instantly verified by his oath it were receivable Bishop of the Isles contra Iames Hamiltoun Eodem die THe Bishop of the Isles pursuing Hamiltoun a Merchant in Edinburgh for his Teind Fish taken in the Isles which is a part of the Bishops Patrimony The Defender alleadged â— that he being a Merchant and not a taker of Herring cannot be lyable for the Teind thereof no more then if one should buy Corns in the Mercat or out of the Barn-yard he could be conveened for the Teind It was answered for the Pursuer that it was the immemorial custom that the first buyer from the Fishers should be lyable to the Bishop of the Isles for the Teind of the Fish bought and for proving thereof produced a Decreet at his Predecessors instance against some Merchants in Edinburgh which Decreet did bear that in a former Decreet betwixt the same Parties the Bishops had proven immemorial Possession against the Merchants 2ly The instance holds not of buying Corns in the Mercat or Barn-yeard but if any body should buy the whole Cropt when it was upon the Land untaken off being in the Sheaves or Stoucks he would undoubtedly be lyable as Intrometter for the Teind so if any Merchant bought not upon the place where the Fishes were taken he was not lyable but buying the Fish fresh as they were taken in whole Boat-fulls and selling them there themselves such Merchants must be liable as Intrometters The Defender answered that the Immemorial custom was indeed Relevant but a Decreet against some few Persons could not prove it against others being inter alios actum But here there was only a Decreet bearing that there was a former Decreet in which that was proven The Lords sustained that member against these who bought the hering
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
would have been before the Bailzies when the Cause was Advocat at which time Cornelius Term of payment was not come The Lords found that the unwarrantable delay by the Advocation should not prejudge Charters and that the case should be considered as it was the time that the Advocation was raised and preferred Charles Charters upon his posterior Arrestment in respect the Term of payment of his Debt was come to the prior Arrestment laid on upon a Debt the Term of payment whereof was not come whereupon Citation was used before the Term came The Advocats having withdrawn from the House upon the Oath prescribed by the Regulation nothing was Called until the midle of December Murray of Achtertire contra Gray December 16. 1670. MVrray of Achtertire having pursued a Contravention against Gray upon several Deeds whereof one was that Achtertire having procured liberty from a Neighbour Heretor to make a Cast upon that Heretors Ground wherein some little Burns were gathered to a Head and thence were conveyed through Achtertires own Ground to his Miln Lade and that Gray had broken down that Cast whereby the Burns were divertedâ— Gray having compeared and proponed nothing the Libel was found Relevant and admitted to Achtertires Probation who by several Witnesses proved that the Defender had broken down that Cast of whom some Deponed simply but two of them Deponed thus that Gray had broken down the new Cast but that the Burns gathered therein in the time of Floods did water Grayâ—s own Lands and that by the new Cast they were keeped in and could not water the same whence it arose to the Lords consideration whether that Deed of Contravention was sufficiently proven or whether the Testimonies of the Witnesses being qualified that the Defender had done the Deed but in continuation of his former Possession of the watering of the Burns whether respect ought to be had to that qualification some thought not because the Fact as it was Libelled was found Relevant and proven and the qualification ought to have been proponed by way of Defense but it was found that the Testimonies being so qualified did not sufficiently prove to infer a Contravention for if the Contravention had been proven by Writ or Oath such a quality either in the Writ or Oath would hinder the same to prove sufficiently the Contravention But because the Testimonies were not to be considered by the Parties the Lords ordained the Sentence to expresse the foresaid Reason of it that the Pursuer before Extract might alleadge any thing thereanent he thought fit Nicol Langtoun contra Robert Scot Decem. 17. 1670. JOhn Graham of Gillesby having Set a Track of his Lands of Graystoneflat to Nicol Langtoun and being at that time at the Horn Robert Scot obtains a Gift of his Escheat and Liferent from Annandale his Superior and thereupon obtains general and special Declarator Decerning Langtoun to pay the Duties to him as Donator Langtoun Suspends and raises Reduction on this Reason that the Gift was simulat to the behove of Graham the Rebel procured by his own Means and Moyen and it being answered by Scot that he being a lawful Creditor of the Rebels might lawfully accept and make use of this Gift for his own security albeit the Rebel had procured the same and Scot the Donator having Deponed anent the simulation of the Gift did acknowledge that the Rebel had procured the Gift and that he had it blank in the Donators Name and that he did fill up Scots Name and delivered it to him The Lords found the Oath to prove the simulation of the Gift and that it having been in the Rebels own hands blank in the Donators Name it was equivalent to an Assignation from the Rebel and that Scot accepting of it so from him could not justly or bona fide make use of it even for security of a just Debt in prejudice of the Tacks-man who had before gotten his Tack from the Rebel Alison Kello contra Kinneir Ianuary 5. 1671. ALison Kello as Heir to her Mother Margaret Nisbet having pursued a Reduction of an Apprizing of the Lands of Paxtoun Led at the Instance of Mr. Samuel Hume against the said Margaret in Anno 1622. and Assigned to Mr. Alexander Kinneir in Anno 1623. upon this Reason that the said Mr. Alexander was satisfied by his Intromission within the Legal this pursuit being against Mr. Alexander Kinneirs Son who is Minor and being stopped upon his Minority quid Minor non tenetur placitare de hereditate paterna The Lords did upon the Pursuers Petition grant Commission to Examine Witnesses upon the Intromssion to remain in retentis till the Cause might be Determined in respect the Witnesses might die in the mean time which being reported the Lords remitted to an Auditor to state the Compt of the Intromission according to the Probation that the stated Accompt might remain in retentis The Defender being heard again before the Lords did alleadge that the Accompt could not be stated upon this Probation but that there being yet no Litiscontestation in the Cause neither can be through the Defenders Minority and this Probation being but before answer to remain in retentis and taken by Commission the Defender not being present at the Examination and the matter being very ancient fifty years agoe the Lords ought to give the Defender the sole or conjunct probation of this alleadgeance viz. That he offered him to prove that during the years of the Legal the Lands were Possest by several Persons by Dispositions or Tacks both under Reversion for certain Sums of Money due by the said Margaret Nisbet which Rights were granted by her and were now produced by the Defender which with the saids Rights produced is much more pregnant nor the Pursuers Probation by some inconsiderable Countrey People without any Adminicle in Writ It was answered for the Pursuer that the alleadgeance was no way Relevant being contrare to her Libel and founded super jure tertij for this Defender hath no interest in the Wodset Rights nor doth any Person appear for them or own them and if this were sustained it would afford a current evasion in all kind of Pursuits upon Intromission by offering still to prove that the Defender did not but that a third Party did Intromet and therefore the Lords have never Sustained such a Defense upon the Defenders sole Probation and in no case have allowed a conjunct probation It was answered that in a matter so old and where the sole probation of a thing of so great Moment was to be by Witnesses the Lords ex officio might Examine Witnesses for either Party and have oft so done especially the same ought to be done here where the probation is by inconsiderable Persons and so suspect and exorbitant proving â—â—nneirs Intromssion to be before he had any Right and the quantities to be much higher then the written Tack of the Lands produced The Lords found that they could not admit a Probation for the