pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
Seing the Husband was not in the Fee the time of the Forefaulture the same being taken away by a Reduction If the Woman should thereafter Marry and have Children the time of her decease but disabled Quaeritur If the Children of the Husband who would otherways succeed if the Father were not Forefaulted will Forefault the Right of the said Estate to the King and will be in the case of a person that is Forefaulted and has Right of Succession to the Estate as Appearand Heir Cogitandum Seing there may be Quaestion Quaeritur what course shall be taken to prevent it Answer It is thought that a Gift may be procured from the King making mention of the Forefaulture and Dishabilitation and notwithstanding that His Majesty is not willing that the persons who are to succeed FailÈieing the Wife of the Forefaulted person and the Heirs of her Body should be prejudged having been Faithful and Active in opposing the late Rebellion Therefore He doth ratify the said TailÈie in so far as concerns them and the Right of Succession Declaring that it shall not be prejudged by the Forefaulture and Inability And for their farther security in case after the Decease of the Wife the Children of the Forefaulted Person be surviving and that any Right to the said Estate shall belong and accrue to His Majesty by their Inability then and in that case now as then and then as now he is to dipone to the Heirs of TailÈie succeeding after the Wife and her Children the said Estate and any Right belonging to His Majesty as being or which shall then be in his hands by the Forefaulture and Inabilty foresaid Quaeritur If a Bond granted to a Man and his Wife and longest liver of them two in Conjunct-Fee and to one of their Sons expresly named and the Heirs of his Body which FailÈieing to the Heirs to be procreat betwixt the Husband and his Wife which FailÈieing to the Wife her Heirs and Assigneys be Heretable or Moveable Seing there is neither Infeftment thereupon nor obligement to Infeft Answer It is Heretable in respect of the TailÈie foresaid there being no TailÈie of Moveables or Moveable Sums And the provision in favours of Heirs Male with the Substitution foresaid is equivalent as if Executors were expresly excluded When a Person has settled his Estate upon a Friend by a Disposition to him and certain Heirs of TailÈie therein mentioned and thereafter for security of the TailÈie has taken a Bond from the person in whose favours the TailÈie was made that he should do no deed to disinherit the other Heirs of TailÈie and to keep the TailÈie inviolable Quaeritur If the said person shall without any Onerous Cause Dispone the Lands or grant Bonds for great Sums equivalent to the value of the Estate if the said Deeds may be questioned by the next Heir of TailÈie Ratio Dubitandi The doer of the said Deeds was Fiar and the Heir of TailÈie cannot come to the Estate but as Heir to him and is lyable to his Deeds Answer It is thought in the said case there is a Fideicommissum in favours of the Heirs of TailÈie and though the Estate might be Disponed for Onerous Causes the Disponer being Fiar yet he ought not to have violate the said Fideicommissum by fraudulent and gratuitous Deeds 2do Besides the said Fideicommissum there is a supervenient obligement whereby the Heir of TailÈie is Creditor and therefore may question any deed without an Onerous Cause in defraud of the said obligement and an Heir in whose favours there is obligements qua Heirs may Question any Deeds done by the person whom he represents contrare to the said obligement As V. G. when Deeds are done on Death-bed or contrare to a TailÈie bearing Resolutive clauses though for Onerous Causes and much more in such a case where a Bond is granted to the End foresaid which ought to be effectual and could operate nothing if the Heir could not question the same Earl of Calendar A Person having provided his Estate failÈiening Heirs of his own Body in favours of a Relation and the Heirs of his Body c. and having by the Write bearing the said TailÈie and a Procuratory of Resignation provided that he should be Lyable to satisfy all Bonds Obligements and Deeds done or to be done by him at any time during Life Quaeritur If these should be understood civiliter dureing his Liege poustie or of his natural Life Answer That it is thought that it should be understood during his natural life Seing the Entail being a free gift any provisiones thereincontained in favours of the granter ought to be construed favourably and the word Lifetime is properly to be understood of natural life If it be provided that the said person should marry a Gentlewoman named in the Writ Quaeritur if such a provision be lawful Seing it appears to be contrary to the Liberty that ought to be in Marriage Answer The Right being sub modo he ought to fulfil the same and there is no restraint as to his Liberty Seing if he think fitt he may choose to accept the Right with that quality or not If the said Entail being made in Leige poustie and resignation thereupon the Granter may thereafter upon Death-bed by a paper apart oblige his said Heir of TailÈie to marry as said is or to fulfil any other provision Answer It is thought that seing he is not so stated in the Right of Succession that the Granter cannot prejudge him who has still voluntas ambulatoria and may evacuat the said Right being Master of it and having it in his own hands and power as he may cancel it so he may qualify it as he thinks fit qui potest plus potest minus A person having by an Infeftment holden of the King under the Great Seal taken the Right of his Lands to himself which failÈiening to such a person as he should name by Writ and his Heirs which failÈiening to certain other Heirs did thereafter Dispone his Estate failÈiening Heirs of his own Body to the person thereinmentioned and the Heirs Male of his Body which failÈiening to certain other Heirs of TailÈie bearing a Procuratory of Resignation and reserving the Resigners Liferent whereupon Infeftment followed Quaeritur If thereafter the Disponer should have Children of his own Body what way should they be Infeft Cogitandum If it should be thought that the first Infeftment should stand in favours of the Disponers Heirs the said last Disposition with what has followed thereupon being conditional and the condition not having existed Quaeritur If the Heir of the Disponers Body should thereafter decease whether the said Right by Disposition shall revive at least that the person foresaid in whose favours the Disposition is made may be served Heir to the Disponers Heir of his Body by vertue of the said first Infeftment and the said Nomination and Disposition Sir Robert Hepburn If the King grant a Charter with the
Et non creditur Clerico nisi quatenus constat ex Actis And 2. That there neither was nor could be a Decreet in the said Process In respect the said Suspension was upon other reasons that were Relevant and compensation being in effect satisfaction and the last exception the said Reasons ought to have been first discust viz. That there were diverse Arrestments at the instance of Creditors which should have been purged and that Sir William had Assigned the Debt whereupon he had charged and the Assignation was intimate So that the Suspender could not be in tuto to pay unless the consent of the Assigney were obtained and that the said Sir William was at the Horn and his Escheat gifted and that the Donator did not concur nor consent 3. Tho' there could have been a Decreet and the Arrestments had been purged and the Assigney and Donator consented yet the samen not being Extracted the Suspender might pass from his Reason of compensation seing res was integra before Extracting and the Suspender may eike and verify any other reason that is emergent And there had arisen a most relevant Reason and Defence to him upon the said Act of Parliament anent publick Debts of which he ought to have and may plead the benefite in regard Acts of Litiscontestation and Decreets are Judicial Transactions and Contracts and as in other Contracts there is locus poenitentiae before they be perfited in Write so in Acts and Decreets before they be Extracted Parties are not concluded as verb. g. even after Litiscontestation before the same be Extracted a Defence may be proponed and in Declarators concerning Clauses irritant tho Parties will not be admitted to purge after Sentence yet before Extracting they will be heard And even by the Common Law albeit ubi res transit in rem Judicatam sententia non retractatur ex Instrumentis noviter repertis yet before Extracting of the same if Writes be Found which will elide the Pursuers Lybel they will be received It was Answered for the Creditors That in this case res was not integra because the Suspender had so far acquiesced that in effect he had payed the Debt Compensation being equivalent And if before extracting he had made actual payment there would have been no necessity of extracting the same and in this case not only there was solutio ipso Jure in respect of the said Compensation sustained but de facto the Lord Balmerinoch had payed 3 or 4000 merks in satisfaction of the Debt charged for the Compensation being so far short and the Creditors had intented exhibition of a Discharge granted by Sir William Dick to the said Lord Balmerinoch of the foresaid Sum of 4000 merks and a Declarator that in respect of the said Compensation the said Right granted by the said Sir John Smith was extinct The Lords at the desire of the saids Creditors having examined diverse persons anent the said Minut and the giving up of the said Assignation and anent the having of the said Discharge granted by Sir William Dick to Balmerinoch the Creditors at length did pass from their Compearance And now the Cause being again advised the Lords did adhere to their former Interloquitor in Anno 1664. And did Find That before extracting Balmerinoch might pass from his Reason of Compensation and decerned in the said Process at Balmerinoch's instance against the Tennents of Northberwick Reserving to the Creditors their Action of Exhibition and Declarator as accords D. 204. Kinloch contra Rate 15. Decemb. 1674. THE deceast Mr. Robert Kinloch Portioner of Luthrie having granted after he was married a Liferent Right to his Wife by Infeftment in some of his Lands in satisfaction of any further Provision did thereafter give her an additional Jointure and Infeftment in other Lands after which he did give a Right of Annualrent forth of the Additional Lands to his Daughter Janet Kinloch The Daughter and her Husband Mr. John Dickson did intent a Poinding of the Ground upon the said Right of Annualrent in which Process Jean Rate Relict of the said Mr. Robert compeared and defended upon her foresaid Rights being anterior to the said Infeftment of Annualrent It was Replyed for the Pursuer That as to the first Right for Provision of the Wife she did not make question but that being in Satisfaction of any other Provision as said is the additional Right granted thereafter was for Love and Favour and Donatio inter virum uxorem and revocked tacitely by the Pursuers Infeftment of Annualrent The Lords Found accordingly That the said posterior Right was revocked by the Right of Annualrent pro tanto without prejudice to the Relict of the Superplus if any be the Annualrent being satisfied Newbyth Reporter Gibson Clerk D. 205. George Drummond contra MenÈies of Rotwell 16. December 1674. IN the Process at the instance of George Drummond for payment of a Sum due by Alexander MenÈies of Rotwel as intrometter with the Debitors Goods It was Found as in diverse Cases before That the pretence that the Defunct was Rebel and his Escheat gifted doth not purge vitious Intromission unless it be alledged that the Defuncts Escheat was gifted and declared before intention of the cause or that the Defender did intromet either by vertue of a Gift to himself or by Warrand and Right from the Donator for the Defenders Intromission tho the Gift was not declared before the intention of the Cause In respect if there was a Gift declared before the intention of the Cause the Defender is in the same case as if there were an Executor confirmed before the intenting of the Cause and if he had either the Gift himself or a Right from the Donator before he did intromet his Possession ab initio being by vertue of a Title tho not perfected cannot be said to be vitious and quivis Titulus etiam coloratus purges the vitiousness of the intromission Strathurd Reporter Gibson Clerk D. 206. Kelhead contra Irving and Borthwick eod die JOhn Irving Merchant in Drumfries having furnished Mournings Winding-sheet and others necessary for the Funerals of the deceast Earl of Queensberry did take a Bond for the Sum of 1424 merks from the Countess Dowager Relict of the said Earl which tho it did bear only that Narrative that the Lady was addebted to the said John without relation to the Cause foresaid yet it appeared it was for that Cause In swa far as the said Countess being confirmed Executrix to her Husband had obtained an Exoneration and the foresaid Debt contracted for the Funerals was one of the Articles of the same The said Countess having deceased the Earl of Queensberry her Son was confirmed Executor to her and a Decreet being obtained against him at the instance of the said John Irving for the foresaid Debt he suspended upon multiple Poinding against the said John Irving and the Laird of Kelhead and James Borthwick and certain other Creditors The said Laird of Kelhead alleadged that he ought to
being one of his Lawyers And therefore tho it might be questioned upon Minority as to any prejudice or disadvantage the Minor may pretend to have by the same yet it will stand as an Homologation of the said Bond as to the truth of the same unless it were offered to be improven by a positive qualification of Falsehood The Lords having considered the Inconvenients on either side if certifications for not production of principals should be loosed being the great surety of the People And on the other part if they should be Snares and Parties should pursue maliciously Improbation having viis modis got the principal Writes out of the Register or known they had miscarryed They Found In respect that Mr. David Thoirs having taken a Right after the matter was litigious by a Charge and Suspension of the Minute betwixt Tolquhone and the said John Forbes the Great Grand-child so that the said Mr. David was in the same case as if the said John were Pursuer and was content to state himself in that case And in respect of the Specialities of this Cause and Adminicles and Homologations foresaid that therefore the said Extract ought to satisfy the Production and the Certification ought not to be Extracted D. 211. Pittarro contra E. Northesk 5. January 1675. THE Earl of Northesk having taken an Assignation to a Bond granted by the deceast Laird of Craige and Earl of Dundee to Margaret Carnagie and her Children for 1000 Merks and having Comprysed thereupon Craigs Estate he did after the Comprysing give a Bond to the said Margaret Carnagie and her Children that in case he should recover payment he should make payment to them of the foresaid Sum Sir David Carnagie of Pittarro being Debitor to the said Earl in the Sum of 2000 Merks Suspended upon that Reason that the said Margaret and her Children had Assigned to him the said Back-bond granted by Northesk and that the said Earl had Disponed the Right of the said Apprysing to the Lord Hattoun And therefore became Lyable to pay the said Sum to the Suspenders Cedent and the Suspender may and does compense upon the said Bond pro tanto It was Answered by the Charger That the Comprysing did neither belong to the Suspenders Cedent nor was to their behoof the said Bond granted by the Laird of Craig being Assigned ab initio without any Back-bond And the Comprysing being deduced before Northesk granted the said Bond And by the said Back-bond he was obliged only to pay the said Sum in case he should get payment and he was so far from getting payment of the said Sum that having comprysed not only upon the said Bond granted to Margaret Carnagie but for other Debts exceeding far the said Debt due to her yet got payment of neither It was Replyed by the Suspender That he was not concerned to Dispute whether he got payment or not but the Charger having Disponed the Comprysing as to the said Sum without the consent of the said _____ Carnagie and her Children and without the Burden of the said Back-bond it was equivalent as if he had got payment it being all one upon the matter as to the interest of _____ Carnagie whether Northesk had got payment of the said Sum or had disponed the Comprysing in sua far as concerns the same The Lords In Respect of the conception of the Bond granted by Northesk Found That either he should procure a Retrocession of the said Bond and Comprysing thereupon pro tanto or that he should pay the Damnage and Interest sustained by the Suspenders Cedent through Northesks granting of the Right of the said Bond and Comprysing to Hattoun And in that case that the Damnage and Interest should be presently liquidate and being liquidate should be a ground of compensation Glendoich Reporter Monro Clerk D. 212. Eod die IT was debated this day among the Lords whether a Bond being granted by a principal and two Cautioners bound conjunctly and severally and the Cautioners not bound to relieve one another if one of the Cautioners should take Assignation to the Bond and should pursue the other the said other Cautioner will have a defence upon that Ground That albeit they be not oblidged to relieve one another pro rata yet that the said obligement inest in sua far as they are bound conjunctly and severally Most of the Lords enclined to find that the pursuer ought to relieve the Cocautioner pro rata and had not action but for his own part But some of the Lords were of another opinion that there being no obligement upon any of the Cocautioners to relieve one another one of the Cautioners paying entirely and getting an Assignation in effect emit nomen And tho both the Cautioners be oblidged conjunctly and severally in relation to the Creditor yet there is no Transaction or obligement betwixt the Cautioners themselves every one having actio mandati as to the principal for their relief which inest tho the principal were not bound to relieve them expresly but ought to be considered as quilibet and Strangers one to another But because the Lords were divided and it was alledged on either hand the case was formerly decided the Decision was delayed this day Vide infra 28. January 1675. D. 213. Laird of Hempsfield contra Bannantine eod die THE Laird of Hempsfield with certain Cautioners for him having granted a Bond of 6000 Merks to the deceast James Bannantine and his Wife the longest liver of them two and after their decease to John Bannatine their Son whereupon Inhibition was execute against the principal and Cautioners And the said John Bannantine did pursue a Reduction and Improbation against these who had acquired Rights after the Inhibition It was Alledged That the Pursuer had no interest because the said Bond was Blank in the name of the substitute and the pursuer could not be understood to be the Bairn to whom the Sum is to be payable after the decease of his Father and Mother seing he was not born the time of the granting of the Bond And as to the Inhibition it was not at the instance of the Pursuer but of his Father and Mother It was Answered That the Bond was opponed bearing the Pursuers Name and tho the Bond had been Blank and the Pursuer not born when it was granted the Father might have filled up any of his Bairns Names as he thought fit And as to the Inhibition it was at the instance of the Father James Bannantine who was Fiar and did accresce to the Pursuer being substitute in the Fee after his decease The Lords Repelled the Alledgance It was thereafter Alledged That the Pursuer was satisfied of the Debt in sua far as either the Debitor or Cautioners had payed the same at least a part thereof and did satisfy pro tanto or some other persons having acquired their Lands after the Inhibition had given Money to the Pursuer or his Father to pass from the
by a Bill given in by a Widow Desireing that she may be allowed to intromet with the Cropt and Goods pertaining to the Defunct without hazard of vitious Intromission The Lords thought That such Warrands being Voluntariae Jurisdictionis and the Commissaries being entrusted for securing the Estate of Defunct persons to the nearest of Kin and Creditors and other persons having interest did Remit the Petitioner to the Commissars of the place Sir David Falconer Younger was for the Petitioner and subscribed the Bill D. 222. Meldrum contra Tolquhone 20. January 1675. IN a Declarator of Escheat at the instance of Meldrum contra Tolquhone It was Alledged That the Horning was Null because the Party was Charged only upon six days albeit he dwelt benorth the Water of Dee And by the Act of Parliament 1600. cap. 25. All Charges of Horning against persons dwell and benorth Dee should be upon 15. dayes at the least And by the 138 Act Parl. 12. K. Ja. 6. It is statute that in case any Denounciations of Hornings should be at the Mercat Cross of Edinburgh upon Charges upon unlawful and impossible Conditions the same and Horning thereupon should be Null And that there was a Decision in Duries Book in Anno 1625 that Hornings even upon Bonds against persons benorth Dee were Null It was Answered That the Act of Parliament in Anno 1600 was only in the case of Hornings upon Citations or Charges to find Law borrowes or for compearing before the Council as appears by the narrative of the said Act which doth interpret and regulate the dispositive Words of the Act. And that the Act of Parliament in Anno 1592. doth not militate in the case of Hornings upon a Clause of Registration seing after that Act until the said Act 1606 such Clauses that Hornings should be upon 6 dayes were not thought and de facto are not impossible And as to the practique It was Answered that there was a late practique in Anno 1664 upon a Debate in the Innerhouse in the case of Philorth contra Frazer Whereby it was Found That the Act of Parliament 1600. is to be understood in the case foresaid where Hornings are upon Charges of the nature foresaid for appearing before the Council and such like but not in the case in question and others of that nature where Hornings are upon Bonds and Clauses of Registration therein contained which do bind and cannot be questioned by those who do oblidge themselves The Lords considered that the narrative of the said Act doth clear the meaning of the dispositive words and there needed not to be a Law and remedy as to Hornings upon Clauses of Registration seing Parties could not help themselves as to Charges to compear before the Council and others of that nature without a Law But they were Arbiters and could make a Law to themselves as to Clauses contained in Contracts or Writes if they thought them grievous or impossible And that there appeared to be a singularitie in the case mentioned by Durie seing the Charge was given in Orkney upon 6 dayes which could not well be satisfied And therefore the Lords for the reasons foresaid did sustain the Horning Actor Hog and Thoirs alteri Falconer and Forbes In praesentia D. 223. Carfrae contra Telzifer eod die A Person being pursued as representing a Debitor upon that passive Title that he had behaved himself as Heir to the Defunct In sua far as being conveened at the instance of another Party he had proponed a peremptor Defence The Lords Found That the proponing of a Defence upon payment or such like was not such a Deed as could infer the Passive Title of Behaving unless it were adminicled with Intromission or otherwayes Nevoy Reporter Hamiltoun Clerk Vide 10 December 1674. D. 224. Chalmers contra Ferquharson and Gordon 22. January 1675. THE Lords Found That a Person being Pursued as Intrometter and having Alledged that before the intention of the cause she had obtained a Gift of her Husbands Escheat the said Defence is Relevant And that after Intromission there being a Donator confirmed before intention of the Cause or the Intrometter obtaining a Gift tho not declared there being no necessity to declare the same against her self that the same doth purge even Intromission before the Gift Some of the Lords were of another opinion upon that Ground that ipso momento that the parties intromet there is a Passive Title introduced against them which doth not arise upon the intention of the Cause but upon their own Act of behaving and Jus being semel quaesitum to Creditors cannot be taken from them except in the case of an Executor confirmed before the intention of the Cause against whom the Creditor may have Action And that there is a difference betwixt a Donator having declared and an Executor having confirmed In respect the Executor is lyable to Creditors but not a Donator and an Appearand Heir having become lyable by intrometting with Moveable Heirship and behaving as Heir his Intromission is not purged by a supervenient Gift seing his immixing is Aditio facto and there is eadem ratio as to Intrometters who are Executors a tort as the English Lawyers speak and wrongously And in effect by their Intromission adeunt passive and are lyable to Creditors Strathurd Reporter D. 225. Jean Maxuel contra Mr. William Maxuel eod die MR. William Maxuel Advocate being pursued at the instance of Jean Maxuel natural Daughter to Sprinkel for 5000 Merks Alledged due to her by Bond granted by the said Mr. William which she did refer to his Oath did give in a qualified Oath Declaring that he had granted a Bond to the Pursuer at the desire of her said Father but the same was never delivered and was so far from being effectual that by the express order of Sprinkel he was not to deliver the same to the Pursuer without his warrand and that he had given him order to destroy the said Bond in consideration that he was not satisfied with the Pursuers carriage and that he had left her a Legacy which the Defender had payed This quality was thought to be so intrinsick that his Declaration could not be divided so as to prove the granting of the Bond and not the Quality Specially seing the said Quality was adminiculate with Letters which the said Mr. William did produce which were written by Sprinkel to the same purpose Yet by plurality It was Found that his Oath proved the Lybel and Decreet was given against him Thereafter the said Mr. William obtained a Suspension upon that Reason that the Decreet was Extracted by favour of the Clerks not without precipitation after that he had applyed to the Lords and desired that the case might be reconsidered And that the Lords had Ordained the Decreet to be brought back and because the party refused they past a Suspension The case being debated in praesentia The Decreet in foro was obtruded and that it was just upon the matter seing
no Legacy left to them and he was Nephew to the Defunct who had a great kindness for him and the said Legacy was not left to him simply but in case his Wife whom he thought to be with Child should not be brought to bed of a Son 4. The Defender could not accept the said Office of Tutor Testamentar Because he and the other two Tutors were named conjunctly and the other two living he could not be Tutor alone Actor Dalrymple alteri Falconer Monro Clerk D. 234. 3. February 1675. A Removing being pursued from some Lands of the Estate of Collarnie the Lady Collarnie compeared and alledged that the Tennent could not be removed without her consent seing the had right to a Terce by the Law and was not excluded by her Contract of Marriage tho she was provided thereby to a Jointure but not in satisfaction of her Terce or what else she could pretend Whereunto It was Answered That she was not served nor kenned to a Terce and until then she had no interest to compear to stop the Removing The Lords Repelled the Defence and Found she had no Interest Reserving her Right of Terce when she should be served and kend as accords Craigie Reporter D. 235. Oliphant of Provostmains contra _____ eod die A Bill was given in desiring that a Comprising being deduced and the Messenger having deceased in the interim before he subscried the same Therefore an other Messenger who was his Collegue might be allowed and Warranted to subscribe the said Comprising The Lords considered That the Messenger that was on life tho he had been employed to execute the Letters of the Comprising by denounceing and citeing yet he did not sit and was Collegue to the deceast Messenger and was Judge with him the day and time of the deduceing of the said Comprising and that a Comprising being Processus Executivus consisting of the Executions and of the Process and Sentence of Comprising upon the day that the Debitor was cited thereto tho diverse Messengers may act severally as to Citation and Denunciation yet none of them could be looked upon as the Judge and the Pronouncer of the Sentence who ought to subscribe the same but the Messenger that did actually sit as Judge and upon the verdict of the Inquest did Decern and Adjudge D. 236. Cranston contra Mr. Mark Ker of Moriston 4. February 1675. UPon a Bill it was desired that Witnesses should be examined in relation to a Process that their Depositions should lye in retentis But The Lords Found That tho Summons were raised that the samen not being execute there was not a Dependence and that it was a streatch great enough to receive Witnesses before Litiscontestation in a depending Process which the Lords are sometimes in use to do but that Witnesses should be received upon a Bill without the Foundation of a Process it is inconsistent with Form It is to be Regrated That of late the time of the English that Abuse having creept in that there are so many Bills given in and sometimes past through inadvertencie in a hurrie the said custom should be yet retained so that Bills do justle out Process and the hearing of Causes Especially it being considered that they are oft times offered in the very time when after pleading in other Causes Parties and Advocates are removing which is the Occasion that oft times most of the Lords are not advertent when the same are offered And it is a Practice not suteable to the gravity of the Court and not without a dangerous Consequence seing Bills may be anent Matters of great importance which ought to be offered to the Lords in a decent way and should be considered by them deliberatly D. 237. _____ contra _____ eod die THE Ship called the Wine-Grape mentioned in the Case aboverelated Num. 207 Being Found by a Decreet of the Admiral not to be a Prize and thereafter the said Decreet being reduced upon a contentious Debate in foro A Bill of Suspension was given in making mention that the Lords having thought fit during the dependence the Value of the Ship being liquidate the Price thereof should be sequestrate in the Complainers hands upon a Bond to pay the Sum therein contained to the Caper and his Owners if they should prevail in the Reduction foresaid And that he was charged to pay the said Sum the Process being now at a period by the said Decreet Reductive at the instance of an Assigney And that he could not pay the same until an Arrestment made in his Hands at the instance of the Swedes the former Owners of the said Ship should be purged which Arrestment was upon the Dependence of a Reduction intented at the Strangers instance for reduceing of the said Decreet Reductive It was debated upon the Bill and amongst the Lords that the said Decreet being in foro contradictorio was of that nature that it could not be reduced and it were of a dangerous Consequence that after Decreets in foro the People should not be secure but upon pretence of the dependance of Reductions of the same that which was found to belong to them by such Decreets should be again lyable to Arrestment and to questioning And upon the other hand It was considered and alledged That there being Arrestment and Warrand for the same upon the dependance the Debitor was not concerned to dispute what the Issue of the same may be but there being de facto an Arrestment the same ought to be purged which could not be in forme but either by lousing the Arrestment or by refusing the Bill upon the reason of Arrestment the Defender in this Reduction finding Caution to make forthcoming if the Pursuer should prevail The Lords notwithstanding Found That in respect the matter was already decided by a Decreet in foro that the Bill should be refused notwithstanding of the said Arrestment upon the dependance foresaid which was hard as to the Debitor who could not be formally secured but in manner foresaid And likeways hard as to the Strangers seing by the said Deliverance the Lords did in effect predetermine the Reduction now depending and upon the matter did Find That the Pursuer could not have Interest to pursue before the Pursuer was heard in the said Reduction D. 238. Vanse Jaylor of the Tolbooth of Edinburgh 5. February 1675. MR. Vanse Jaylor of the Tolbooth of Edinburgh did give in a Bill complaining that the Jaylor of the Canongate was in use to enlarge Prisoners being put in for debt upon the Warrand and consent of the Creditor at whose instance they were imprisoned whereas the Complainer did not enlarge any such Prisoners without Warrand of the Lords Letters and therefore desired that either he should be allowed to have the same liberty or that it should be denyed to other Jaylors The Lords did consider what was fit to be done in all such like Cases and in end the plurality did resolve that where the Sums were small not
the same to be transported to Scotland and in the interim War having arisen the Ship and Goods were taken by the Dutch and that he had done for the Pursuer as for himself and as other Merchants had done for themselves Which Oath being advised It was debated amongst the Lords whether the Defender should be Assoilied in respect of the Oath and qualification foresaid And It was Found that albeit the Defender might be excused upon the account foresaid for not going to Bourdeaux and fulfilling his Commission in terminis yet as to the of the parcel of Cards with the product of the Salmond and the embarqueing of the same for the Pursuers use for which he had no order he was to be considered as negotiorum gestor and upon his own hazard and could not prejudge the Pursuer by disposing of his Money unless he were able to say that gessit utiliter both consilio eventu specially seing he might have secured his Money in Factors hands or transmitted the same by Bills of Exchange without employing or far less hazarding the same without order Mr. Thomas Hay Clerk D. 260. 8. June 1675. THE Lords yesterday did Order that in regard of the great abuse in desiring and granting Advocations so frequently from Inferiour Courts to the great prejudice of the People and the retarding and delaying Justice that therefore the Ordinary upon the Bills may refuse to pass Advocations if he find cause but that he ought to report all Advocations before they be past to the whole Lords D. 261. Kyle contra Gray eod die THIS Day the Lords Found That Advocations for Sums of Money within 200 Merks could not be past upon any reason of Iniquity Castlehill Reporter Some of the Lords in the case foresaid were of Opinion that Advocations should not pass tho the Process had been for a Sum above 200 Merks Because Litiscontestation had been made in the Cause and after Litiscontestation there can be no Iniquity but by a Decreet which ought to be Suspended without Advocation D. 262. Grant contra Grant 10. June 1675. IN the Improbation of a Bond the Bond being produced and the Defender refusing to abide by the same Certification was craved against the said Bond because the Defender did not abide by the same And the Lords were clear that the Certification should be granted for not abiding by the said Bond tho it was produced but because the Witnesses in the Bond had been examined and there being only two Witnesses to the same they both declared that they were impuberes the one of 8. and the other of 9. Years of Age the time of the subscribing of the Bond and the Subscription was not like the Subscription now used by them and to their remembrance they were not Witnesses to the same but were not positive that they were not Witnesses The Lords in respect of their Declarations and that the Defender himself did in effect at least presumptively acknowledge the falsehood of the Bond in sua far as he did not abide by the same Had an Impression that the Bond was false and therefore they granted Certification for not abideing by the same and did leave to the Pursuer either to take out the Certification or to insist in improving of the Bond or for declaring the same Null as wanting Witnesses as he should think fit Seing without question tho the Witnesses did not fully improve it yet in respect of their Age the time of their pretended subscribing the same and by their Declaration they did not astruct the Truth of the same In which respect the Bond ought to be constructed and looked upon as wanting Witnesses and so Null Mr. Thomas Hay Clerk D. 263. Scot contra Murray 11. June 1675. A Suspension being raised of a Decreet Arrestment was used at the instance of the Creditor after the raising of the same and upon that pretence It was craved by the Suspender That the same might be loosed and upon the Report of the Bill the Lords having debated Whether the said Arrestment could be loosed being upon a Decreet though suspended The Lords Found That tho a Suspension be raised of a Decreet yet it does not cease to be a Decreet until it be taken away by a Decreet in favours of the Suspender and that tho a Suspension sists execution yet the Creditor may arrest seing the Arrestment is no Execution but a Diligence and Remedy to preserve the Debitors Estate to the effect that after discussing of the Suspension the Creditor may have execution against the same And therefore They Found the Arrestment could not be loosed In this case the Suspender had consigned the Principal Sum but not the Annualrents otherwayes if he had consigned all the Lords would have loosed the Arrestment seing the Consignation of the Money is sufficient Surety to the Creditor Mr. Thomas Hay Clerk D. 264. Auchenleck contra E. Monteith 15. June 1675. WIdow Auchenleck pursued the Earl of Monteith for the price of certain Ware for his Ladies Cloaths extending conform to an Accompt to the Sum of 177. lib. It was Alledged for the Earl That the said Ware was furnished after he had served Inhibition against his Lady that she should not contract Debt to his prejudice Whereunto It was Answered That the said Furnishing was necessary for the Ladies Cloaths and albeit after Inhibition she could not contract Debt to her Husbands prejudice yet the Earl being obliged to furnish her Cloaths and other Necessaries he will be lyable for what is furnished to her necessarily The Lords upon the Report of the Debate foresaid having considered the Inhibition and that the execution of the same was not registrate were of the Opinion that the said Inhibition was Null But because it was not questioned by the Defender they Ordained that the Reporter should hear what Answer the Defenders Procurators could make as to the said Nullity It was thought hard by some of the Lords That a Merchant after Inhibition at the Husbands Instance furnishing bona fide to the Wife should be frustrate upon the pretence of an Inhibition unless either the said Inhibition had been intimate to the Merchant or it were notourly known that the Wife was Inhibited seing such Inhibitions are granted without any Ground either of Write as Bond or Contract or the dependance of a Process but only upon a Bill and Desire of the Husband sine causae cognitione And it were hard That Merchants when Persons and Ladies of any Quality come to their Shops for buying their Ware should go to the Registers and try whether they be inhibite but these Points were not decided D. 265. Katharine McMillan Lady Logy contra Meldrums 16. June 1675. A Disposition being granted by a Husband to his Wife of Moveables and she in an Improbation of the same being urged to abide thereat and offering to abide at the same as a Write truly delivered to her by her Husband The Lords Found That she ought to abide at the
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
contra Montgomerie 29. June 1675. A Pursute for making up the Tenor of a Comprising was sustained in respect the Adminicles were most pregnant and in special the Executiones were yet extant and entire Monro Clerk _____ It is thought that much Cautione and tenderness should be used in Processes of the Nature forsaid for proving the Tenor of Compriseings seing Compriseings are to be considered either as Decreets or as Executions and in effect they are both upon the matter In respect the Messenger Decerns and Adjudges and Dispones the Lands and others comprised and therefore the same ought to be subscribed both by the Messenger who in subsidium doth that which the Partie ought to do and doth dispone his Estate in satisfaction of his Debt and by the Clerk of the Compriseing as a Decreet and the Tenor of Decreets cannot be proven but by Extracts And a Comprysing being as said is Processus executivus and ultimate execution it ought not to be proven but per relationem Nuncij and execution under the Messengers hands And it were hard that executiones should be made up by witnesses and probation of the Tenor Seing there may be a nullity in the same if they were extant And tho witnesses may remember they had seen executions they can hardly remember upon the precise tenor of all the words of the same And if the tenor of the executions might be made up there should be no security Seing Prescription which is the greatest Security of the People may be evacuated upon pretence that there was an interruption by the execution of a Summonds but that the same being lost is made up by proving the Tenor and by an Act of Parliment K. Jam. 6. Par. 6. cap. 94. It s Ordained That the Tenor of Letters of Horning and Executions thereof is not probable by Witnesses And there is parity if not more Reason as to Comprisings whereby the greatest Estates may be taken away by a Decreet for proving the Tenor. D. 284. Hall contra Murray 30. June 1675. ARrestment being upon a Decreet and the said Decreet being thereafter turned in a Lybel The Lords Found That the Decreet ceased to be a Sentence and the Arrestment thereupon is now of the nature of an Arrestment upon a Dependence and may be loosed Gibson Clerk D. 285. Dunmure contra Lutfoot eod die THE Lords in an Improbation Found as they had done formerly in diverse Cases That an Extract out of the Books of an Inferior Court does not satisfie the Production the question being of a Write registrate in the Books of the Canongate Newbyth Reporter D. 286. Stewart contra Riddoch eod die JAmes Stewart of Aberlednoch having obtained a Decreet Cognitions Causae against John Riddoch for implement of a Disposition granted by David Riddoch his Grand-father and thereupon having also obtained a Decreet of Adjudication the same was stopt upon a Bill given in by _____ Campbel of Tarririck pretending that he had a Right to a Contract of Mariage betwixt Alexander Riddoch and his wife as assigney constitute by the said Mr. Alexander in whose favours the Granter of the Disposition to Stewart was obliged by the said Contract to dispone to him the same Lands And the Assignation granted by the said Alexander Riddoch to the said Campbel being questioned as false The Lords thought fit to hear both Parties on their several Adjudications reserving Improbation of the said Assignation and with this Declaration that if the said Assignation should be improven the Decreet and Adjudication upon the same should fall Because there was a Competition in Diligence The Lords did wave the Debates in the Improbation being most as to that Point who should abide by the said Assignation as true seing the Assigney Campbel declared that his Name was filled up in the same without his Knowledge and was not concerned to abide by the same and Mr. John Drummond of Megginsh compearing as having a compleat Warrand and Commission from the said Mr. Alexander Riddoch who was in Barbadoes to prosecute the said Action which had been intented in Campbel's Name offered to abide by the said Assignation only as a Factor Some of the Lords thought that a Write being questioned as false there should be some person to abide by the same upon their hazard simply and not with such qualities seing the consequence and hazard of persons that abide by Writes questioned upon falsehood if the same should be improven is the great bulwark and security of the people against falsehood which doth encrease daily But this point was not decided D. 287. Clerk contra Steuart eod die A Husband by his Contract of Marriage having got the Right of the Fie of a Tenement of Land settled upon him his Wife having resigned the same for Infeftment to him and her and the Heirs of the Marriage whilks failÈiening his Heirs He and his Wife did thereafter enter in a Contract with another Sister of his Wifes who had Right to the equal half of the said Tenement as Heir portioner with her Sister by which Contract there was a mutual TailÈie with consent of the Husband and the Right of Fie that by the former Contract was settled upon her Husband as said is was disponed to the Wife in sua far as both the Sisters with consent of their Husbands were obliged to resign their Respective parts in favours of their Husbands and themselves in Liferent and the Heirs of the Marriage in Fie whilks FailÈieing in favours of the Wifes Heirs Which Contract was questioned by a Reduction at the instance of a Creditor of the Husbands upon that reason that the said Right of Fie granted by the said Contract betwixt the Husband and the Wife and her Sister was in defraud of the Husbands Creditors and null by the Act of Parliament 1621. In sua far as the Husband had a Fie of the said Tenement by the Contract of Marriage betwixt him and his Wife which might have been affected with Execution at the instance of his Creditors and the said Fie was given by the said late Contract to the Wife so that the Husband had only a Liferent In this Process It was Alledged 1. That the Act of Parliament did militate only in the case of Dyvors and Dispositions granted by them And 2. That the said Act of Parliament doth only rescind Alienations that are made without true just and necessary Causes and that the said Contract betwixt the Husband and his Wife and her Sister was made for a true and just Cause and the Fie of the said Tenement which the Debitor had was given away in respect of the Obligements of the said Contract in favours of the Husband the Pursuers Debitor which was as equal as to advantages for the Pursuers Debitor as they were for the other party seing both the Sisters their parts of the Tenement were provided in the same manner to the Respective Wives and their Husbands and the Heirs of the Marriage whilks failÈiening the Wifes Heirs
Edinburgh in a disguise and in Womens Cloaths Mr. Vanse Keeper of the Tolbooth did give in a Bill representing That there being so great a number of Prisoners upon account of Conventicles and for Criminal Causes and the said Captain being incarcerate not for a Crime but for not finding Caution he was in bona fide not to look upon him as a Person that would escape and there being so many Persons who had access to other Prisoners to furnish them Meat and upon other Occasions the said Captain his Escape in manner foresaid was such as the most faithful and diligent Keepers might have been surprized and imposed upon and therefore did desire that his Carriage might be tryed by the Lords and if they should find him innocent that he may be cleared It was thought by some of us That the Desire foresaid resolving either in an Absolvitor or a Declarator of his Innocency The Lords could not give a Sentence as to either in Form unless either there were a Pursute against Mr. Vanse at the Instance of the Persons concerned or a Declarator at his instance against them being called and any Sentence that the Lords should give the Parties concerned not being called will be no security to the Petitioner And whereas it was pretended that this being an Incident and a Dependance before the Lords they may proceed upon it as accessory to the said Dependence It was Thought That the suffering the Prisoner to escape tho it had a dependence upon the Process yet could not be called an Incident but a delictum whereupon did arise a ground of Action against the Petitioner both at the instance of the Town of Edinburgh who were directly lyable to Creditors for the escape of Prisoners and at the instance of the Parties concerned and therefore their Interest and Action could not be prejudged in so summar a way upon a Petition they not being called Whereas such Actions being both of importance as to the matter and of difficulty and intricacy do require not only citation of Parties but all the ordinary Solemnities of Process both for introduceing and discussing the same Vide infra Novemb. 23. D. 300. Warden contra Berry 20. November 1675. THE Lords Found That an Arrestment upon a Decreet after it was suspended may be loosed upon Caution Done upon a Bill Hamilton Clerk D. 301. Vanse contra Sandilands 23. November 1675. IN the Case abovementioned concerning the Escape of Captain Martine and the Bill given in by Patrick Vanss which was given up to _____ Sandilands Commissioner for the parties concerned and to his Procurators to see and answer this day It was Represented for Patrick Vanss That Keepers of Prisons are in effect Depositarij and that Prisoners are entrusted and depositate to be keeped by them And in Law Depositarius tenetur only de dolo lata culpa and the Petitioner could be charged with neither And the Prisoners Escape in a disguise is such as might have surprised and imposed upon the most circumspect and diligent Keeper And diverse Instances from Lawyers and Story were adduced of Escapes of that nature of prisoners in disguise and of the Impunity of Jaylors being free of Fraud and any accession to the same Whereunto It was Answered That the Keepers of Prisons are not Depositarij but publick Servants and Officers and in all cases of any Trust or Charge when the same is not gratuitous and dantis causa but likeways causa accipientis and ubi intervenit merces these who are trusted tenentur praestare culpam levissimam And seing it cannot be said that the Prisoner escaped vi majore which could not be resisted nor casu fortuito which could not be foreseen or prevented the Keeper and his Servants for whom he should answer cannot be said to be free of culpa And albeit quaevis causa excusat a poena where there is no dolus and the Instances adduced do militat only to that purpose it cannot be instanced either at home or abroad that Magistrats and custodes Carcerum under them were found not to be lyable in subsidium for damnage and interest for the escape of Prisoners and yet the Lords enclined to free the Petitioner and that it may appear to be done the more warrantably they ordained him and his Servants to be examined concerning their Knowledge of the said Escape Some of the Lords were of the Opinion That it was to no purpose to examine the Parties themselves and tho they had Charity for the Petitioner that he was not conscious or accessory to the said escape yet that he and his Servants for whom he should answer could not be thought to be free of culpa and negligence and that is was hard for securing him from prejudice to unsecure the People and if such a preparative should be sustained it would be of dangerous Consequence and not only a prejudice but a discouragment to the People if after the extremity of Diligence and Trouble Prisoners for Debt or upon other accounts should escape impune upon such pretences And it was remembred that upon the Occasion of the Indulgence and Favour to Keepers of Prisons in Edinburgh there had been of late diverse Attempts and Escapes and in this instant Year one being taken for a High-way Robber and imprisoned in Edinburgh had escaped without any Censure or Punishment of the Servants of the House Vide supra November 18. D. 302. Mr. James Eleis contra John Hall and others 24. November 1675. IN a Suspension of multiple poinding at the instance of Mr. James Eleis of Stainhopmilns against John Hall and the other Creditors of Mistress Masterton and against the Creditors of James Masterton It was Found that Mistress Masterton the Relict not being confirmed Executrix Creditrix to her Husband her Husbands Creditors are preferable as to any Goods and Debts extant and undisposed of which belonged to her Husband In respect albeit the Right of the same was established in the person of the Executrix yet they did pertain to her as Executrix and as having a Trust and Office And to the effect the Testament may be Execute and what is confirmed should be made forthcoming to all Parties having Interest and consequently to the Defuncts Creditors and not her own And the Executrix has not an absolute property in the Goods confirmed but only qualified and for Administration and to the effect foresaid 2. It was Found That a Servant for his Fies is not priviledged and preferable to other Creditors 3. James Masterton having granted a Bond for payment of a considerable Sum after his own and his Wifes decease in case he should not have Children of his own Body It was Alledged That the said Bond being without an Onerous Cause and not being effectual until after his decease as said is and failÈiening of Heirs of his Body was of the nature of donatio mortis causa and could not affect the Relicts part Whereunto It was Answered that the said Bond being granted
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâ—on that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
after Circumduction of the said Terms and that such Certifications are not only the great Surety of these who obtain the same but of these who obtain Right from them conceiving themselves to be secured with such Certifications Yet the President and others of the Lords enclined to repone Alexander against the Certification the Writes being produced tho it was urged that beside the Security and Interest of People as said is it was to be considered that in this Case there were Advantages pretended to on both hands viz. by Alexander of an expired Comprysing and by the Doctor of the said Certification and that Alexander and his Authors by vertue of their Comprysing had been many years in Possession tho there was probability the Comprysing was satisfyed and it seemed to be equitable that the Doctor should have a Decreet of Removing and should give a Reversion to Alexander limited to such a time as the Lords should find just upon payment of what should be resting and unsatisfied by his and his Authors Intromission if there there were any part of the Debt yet resting But this Point was not decided the Lords having recommended to some of their Number to endeavour an Accommodation betwixt the Parties D. 340. Abercrombie contra Acheson and Livington eod die A Taverner after she had removed from her Masters Service and was Marryed was pursued to Compt and Reckon for Ale and Wine which the Pursuer offered to prove was layed in in his Cellars The Lords Found That the Pursuer ought to Lybel and prove that the Debt was yet Resting Seing it was to be presumed that Servants of that quality did Compt Weekly with their Masters and the Pursuer would not have suffered the Defender to go out from his Service before she had Compted and made payment And it appeared that there had been former Decisions to that purpose Lord Justice Clerk Reporter D. 341. Dundass contra Turnbul and other Creditors to Whitehead of Park eod die IN a Competition betwixt an Infeftment of Annualrent and a posterior Infeftment upon a Comprysing the Lords enclined to find that the Infeftment of Annualrent was made publick by a pursute of poinding the Ground before the Infeftment upon the Comprysing But some of the Lords not being clear the case was not decided Gosford Reporter D. 342. Wauch contra Jamison eod die DOctor Bonar being to go out of the Country did Dispone a Right of Lands and of an Annualrent to Mr. John Smith his near Relation upon a Backbond granted by the said Mr. John bearing that the said Right was granted partly in Trust and partly for surety to the said Mr. John for Sums due for the time to him by Bonar and of such Sums as Smith should advance to Bonar or his Creditors And that the said Right should be Redeemable by Bonar or his Sister if she should survive him by payment of the foresaid Sums Thereafter the Doctor did grant a Bond of 5000 Merks to the said Mr. John Smith bearing no Relation as to the said surety And bearing as to the conception a simple Moveable Bond to the said Mr. John his Heirs and Executors And after the said Mr. John Smiths decease there being a Competition betwixt Doctor Jamison his Heir and the Executor as to the said Sum of 5000. Merks And the question being whether it should be thought to be Heretable in respect of the said surety or Moveable In respect of the conception of the said Bond. The Lords did consider the case as of great moment as to the consequence and Interest of the People and upon debate at the Barr in praesentia and among themselves they came to these Resolutions viz. That it was consistent that a Sum should be Moveable and yet that it should be secured by an Heretable Suretie as in the case of bygone Annualrents due upon Infeftments of Annualrent and of bygone Feu-duties or Taxations the same being unquestionably Moveable ex sua natura And yet there being a real surety for the same and a real Action for poinding the Ground even competent to Executors And likewayes in the case of Wadsets loosed by Requisition and bearing a provision that notwithstanding of Requisition the real Right should stand unprejudged until payment in which case the Sum would be Movable tho still secured by Infeftment 2. That as to these qualities of Moveable or Heretable in relation to the Interest of Succession and Question betwixt Heirs and Executors the design of the Creditor animus was to be considered principally And if Debts either by the conception were Heretable ab initio or an Heretable surety taken thereafter for Moveable Debts as a Wadset or Comprysing It was to be presumed that the Creditor intended to alter the quality of the Sums and that they should belong to his Heirs but if Creditors should take an Heretable surety without any intention to alter the quality of the Debt or that the same should ly as bonum stabile and fixt the Debt continues still Moveable As v. g. If a Creditor having done exact Diligence should take a Gift of Liferent Escheat or Recognition upon a Back-bond that he should be satisfied in the first place of his Debt Or if in a Suspension a Disposition of the Debitors Estate should be consigned because he cannot find Caution Or in the case of Bonorums a Disposition of an Heretable Estate should be made in favours of his Creditors Or if a Debitor should Dispone his Estate in favours of a confident person with the burden of his Debts In these and the like Cases Because the Creditor does not intend that his Money should ly as an Heretable Debt but upon the contrary has done and is about to doe all possible Diligence for recovery of the same the Debt continues still Movable notwithstanding of the said accessory and extrinsick surety 3. Bonds being taken after a general Surety in the Terms foresaid for Debts to be advanced may be Moveable notwithstanding of such Surety if it appear that the Creditor intended it should be such As if such supervenient Bonds should be taken to Executors Excluding Heirs Especially when such general Sureties for Sums as are to be afteradvanced are not dispositive but by way of Provision containing Back-bonds and not of the Right it self viz. That the Receiver of the Right should not be lyable to denude until he get payment of the Sums that should be due to him at any time thereafter In which case it appears that he has not a positive Right and Surety for the said Sum but an Interest and exception of Retention The Lords in end In the foresaid Cause Found that the said Bond of 5000 M. In sua far as it should be made appear to be made up of the Sum mentioned in the Back-bond that was due to Smith at that time should belong to the Heir an as Heretable Sum In respect ab initio the said Surety was granted for the same But as to the residue of the
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