therein though far exceeding his Debt Bond Moveable A Party having given a Bond to the end that thereupon a Comprysing may be deduced against the Granter For settleing the Estate of his Father in his Person And having granted a Back-bond to pay the person granter of the Bond a Sum of Money with Provision That if he denude of the Comprysing he shall be free of payment of the Money Quaeritur If the Sume be Moveable So that the Relict of the Creditor may crave a part thereof Jure Relictae in respect the Sum is in Obligatione And to denude of the Right of the Comprysing is in Facultate Solvendi Mr. Archibald Nisbet contra Dalgarno Bonds of Provision to Children A Father having granted Bonds of Provision to Children with a Clause That they should be valid though not delivered Quaeritur The same being granted in Leige poustie If they should prejudge the Relict or Fisk Ratio Dubitandi The Granter is Master of them and may Cancel and destroy them Answer Si absit Dolus and the Defunct did intend nothing but to provide his Children they should be considered as a Debt Bond of Relief IF a Person obliged Conjunctly with another upon a Bond to be relieved may not after Registration of the Principal Bond charge for Relief And for that effect to pay the Sum and poind for the same Forbes contra Vdnic Baron Courts QVaeritur If the Superior may pursue before his Baron Court for Non-entry or Ward or Marriage Ratio Dubitandi That the said Casualities are fructus of the Superiority And seing the Baron may pursue his Tennents for the Fruits of Property There is the same Reason that he should pursue for the Fruits of his Superiority And the Vassals have no prejudice but rather Advantage that they are not taken from their own Houses to answer before another Court and to be at the Charges both of Attendance and Process which are greater there And if the Baillie do wrong it may be repaired by a Reduction Bastard IF a Bastard has disponed his Estate in Leige Poustie and Infeftment has not followed dureing his Life Will the King or his Donator be lyable to fulfil the Disposition If a Bastard's Relict and Bairns will have their Legitime though he cannot make a Testament Answer Affirmativé If having Children he may make a Testament and name a stranger an Executor seing the King has not prejudice And his Children cannot complain having their Legitime Cogitandum If at least he may leave Legacies And his Children Executors nominate at the least nearest of Kin and Executors ab intestato will be lyable to the same If a Bastard has Testamenti factionem passivam and may be named Executor or Heir of Provision Answer Affirmative If a Bastard may have an Heir of TailÈie and Provision Cogitandum If a Bastard by a Deed inter vivos has disponed his Estate in Lands by a delivered Write and dyeth before the Right be perfected Quaeritur What way the same shall be perfected or what Action is competent to the Person in whose Favours it is made and against whom Answer It is thought that the King being to succeed to the Bastard his Officers may be pursued and the Director of the Chancery if the Lands hold of the King and if they hold of another Superior the said Superior To hear and see the samen adjudged and Precepts directed Quid Juris If the Deed be not a simple Disposition but a Right to the Disponer in Liferent and another Person in Fee with the ordinary Clauses and Power to alter Answer There may be more Question in this case being upon the matter Donatio mortis causâ Quae Ratio That a Bastard cannot make a Testament whether or not ob maculam natalium Or that by reason thereof they were as Dedititij in Law swa that during Life they were liberi but dyed servi and nulli without power to dispose of any thing Answer That the said Incapacity was ratione natalium Seing these who have no other Heirs so that the King is to succeed as ultimus Haeres have not Testamenti factionem If a Father who is a Bastard will succeed to his Children Answer It is thought he will Bishops IF Precepts granted by Bishops may be execute after their Death If a Bishop being upon the point to be Translated may accept a Renunciation of a Tack not expired and grant a new Tack for moe years in prejudice of his Successor Or if he may set a Tack Bishops Debts SEing Bishops are an Incorporation and do not represent their Predecessor's Person but only the Incorporation and therefore are not lyable to his Debts Quaeritur If at least he be lyable to the Debts of the Bishoprick As v. g. If there be an Annualrent payable out of the same to a pious Use and the preceeding Bishop has not paid the same Will his Successors be lyable personally at least will their Rents be affected by a real Action of Poinding the Ground or like to the same Quid Juris As to the Taxation if a Bishop would be lyable for these bygones that were due by his Predecessor reserving Relief against his Heirs and Executors Bodomaria BOdomaria est Foenus Nauticum quo sub spe majoris lucri pecunia datur Navis Patrono hoc pacto ut salvâ nave tantum cum faenore reddatur relicto interea Hypothecae loco navigii fundo quo perdito capitale interit Besold Thesaurus Bodom Burgh's Liferent Escheat WHat Execution can be against Burghs for their Debt If they may be charged with Horning and if thereupon any Liferent Escheat may follow C. Camera Imperialis CAmerae sententiae an ab iis appelletur an Imperator eas avocare possit de earum revisione vide A. ibi Appellat Captions IF Captions may be Execute after Sun-set seing Poinding cannot be then executed It appears there is difference betwixt Poinding and Caption by reason other Persons that may have interest in the Goods may be concerned in the Poinding which is not in Captions And the Kings Rebels may be taken at anytime and there is no time so fit to take and surprise them as the night Rothemay against Forbes Before the Council found that Captions should not be execute in the night Casualities of Superiority IN General It is thought that all Casualities which are Fructus Dominit directi are to be considered as fructus pendentes of Lands which pertain to the singular Successor unless they be Collecti and they are never thought to be Collecti unless they be at least claimed and pursued for Causa cum qua Res transit REs transit cum sua causa hoc est cum omni cominedo onere Jus. Fluv p. 775. n. 55. In conditionali dominio interest an sub conditione ad nos pertineat an verò à nobis abscedat priori casu quamvis Dominium in Aere stare non putest tamen quoad nos est in pendenti in
in favorem commercii Goods belonging to Rebels may either be Disponed and given by themselves in payment of their Debt or poinded or otherways affected before Declarator and Diligence done by the Donator to affect the same Grana crescentia WHat is the reason for the astriction of Grana crescentia Answer Feuers are in effect Coloni and perpetual Tacksmen And they ought not to be in better case than Tennants whose Grana crescentia were upon the matter thirled the Food and Expences of Labouring being deduced it is thought the Tennent will have no more than will entertain him Great Seal A Gift of the Estate belonging to Bastards or Forefaulted persons whereupon there was no Infeftment being granted under the Great Seal Quaeritur will it be valid Ratio Dubitandi The ordinary way of passing such Gifts is under the Privy Seal H. Heirs A Child being served Heir to his Mother and thereafter the Childs Father being served Heir to the Child Quaeritur if he can be said to be Heir of Line to his own Wife and ought to be discust before other Heirs A Woman being Married to a Bastard and having a Child Quaeritur as the Child will succeed to the Mother whether the Child having no other Heirs his Father being a Bastard so that he cannot have any Cognati upon the Fathers side will his Mother be Heir to him Ratio Dubitandi That by the Common Law the Mother does succeed and as the Child does succeed Ratione Cognationis and Relation to his Mother it seems that for the same reason she should succeed to him the Relation being mutual Quaeritur If a Son of a former Marriage having Right to succeed by Substitution in the case where the Father provided Lands to the Son of a second Marriage and the Heirs of his Body Whilks FailÈieing to the Fathers other Heirs and Assigneys for implement of his Contract of Marriage There being no other Children of the second Marriage must he be Heir to his Father the substitution being as said is in favours of the Fathers Heirs Ratio Dubitandi That in many cases the word Heir to another person than the person De cujus successione agitur is to be understood haeres habitu vel potentiâ non actu As if upon considerations a Brother should pass by his Brother of purpose and FailÈieing his own Heirs should substitute the Heirs of his Brothers Body But in this case it would seem by the Obligement of the said Contract of Marriage and the said right he has intended that he should be represented himself FailÈieing the Heirs of his Marriage Vide the tenth and eleventh Questions in the Title Successor titulo Lucrativo Litera S. If that should be the Construction Quaeritur Quid Juris If the Son of the second Marriage should decease the Father living Seing the Son of a former Marriage cannot be served Heir to his Father Cogitandum Lands being entailed to diverse persons substitute and the Heirs of their Bodies whilk FailÈieing to the other Heirs of TailÈie successivé Quaeritur If one of the said Heirs of TailÈie be Forefaulted before the Death of the person in Fee leaving descendents of his own Body whether will the next Heir of TailÈie succeed Ratio Dubitandi Because the next Heir who would succeed FailÈieing the Forefaulted person and the Heirs of his Body cannot be said to be proximus seing the Children of the Traitor are nearer And though they be nulli and mortui civiliter they are not naturaliter nulli So that they being incapable and the others not having jus sanguinis it may appear quod nullius est pertinet ad Regem It is thought that the nearest of Kin should exclude the Fisk Seing qui sunt nulli they are not to be considered as to any effect and especially in that which is odious and exclusive And it is hard that the Estate should be Forefaulted by the Crime of a person who had never Right to it Behaving as Heirs QVae Ratio That the owning a Title of Honour and sitting in Parliament doth not import Behaving as Heir and yet the owning and intrometting with a Sword or Armour or any thing else will import Gestionem Answer That Creditors being to be satisfied out of the Goods and Estate belonging to a Defunct Debitor If the Appearand Heir doth meddle with any part of the samen Eo ipso adit passive quia miscet se rei which should be Lyable to the Executors Execution But a Title of Honour is not such an Interest as could be any way Lyable to the Creditor and the Appearand Heir in owning the same non libat haereditatem Quaeritur If a Ratification by any Appearand Heir of a Right granted by the person he was to succeed to being yet on Life will import Gestionem Ratio Dubitandi That he could not be Heir nor Gerere during the Defuncts Lifetime And on the other part the ratification is granted because he is Appearand Heir and might question the Right And as one may be Lyable passive by accepting a Right in the Defuncts time whereby he is Successor titulo lucrativo so he may Behave by a Deed in the Defuncts time Heir of Conquest THere being three Brothers and the middle Brother having an Estate and deceasing after the decease of his Elder Brother who had diverse Sons and the Younger Brother being on Life Quaeritur Who will succeed to the middle Brother as Heir of Conquest Ratio Dubitandi 1mo The Younger Brother being Heir of Line and who would be Tutor to the Children of the middle Brother if he had any it may be doubted if there should be a representation in conquest the Heir of Conquest not being properly Heir 2do Conquest ascending gradatim whether would the Youngest or Eldest Son of the Elder Brother succeed as Heir of Conquest being both collateral to the Defunct Discussion of Heirs A Person having provided his Estate to his Daughter with power to Dispone and Redeem is obliged that if he should make use of that power in prejudice of his Daughter he and his Heirs Male and Successors in that Estate and Dignity should be obliged to pay a certain great Sum of Money at the first term after his Decease Quaeritur whether his other Heirs or Executors and not only the Heir Male will be Lyable to pay the said Sum at the least in subsidium The Heir Male being first discust Lauderdale and Lady Yester Quaeritur Quo ordine A Successor Titulo Lucrativo should be Discust Answer It is thought that he should be discust before the Heir of TailÈie being in effect a general Heir Unless Lands be Disponed to an Appearand Heir of TailÈie in which case he should be considered as an Heir of TailÈie When the order of Discussion is Renounced If the Heirs of TailÈie or Provision may have recourse for their relief against the Heir general who by Law is first Lyable to the Debts Albeit as to Creditors that order be
Civili usucapi nequeunt Perez Instit. Tit. 10. Nihil enim operatur bona fides aut Titulus propter vitium nisi vitio purgato nempe re furtivâ reversâ in potestatem Domini Servus Fugitivus non usucapitur quia fugiendo sui furtum facere dicitur Si quis mala fide absente forte Domino vel negligente aut eo decedente sine successore fundum alienum possederit vendiderit Emptori bonae fidei non obstat usucapioni vitium quasi rei furtivae non enim fundi locive furtum committitur aut rerum immobilium facilis est interversio Res Fisci usucapi non possunt quia Juris publici sunt bona autem vacantia usucapiuntur quae haeredem non habent si antequam a Fisco occupentur ab alio possideantur quia nondum Fisco denunciata non sunt Fisci sed manent in Commercio Presentation upon Forefaulture QVaeritur If a Composition be due to the Superior for receiving a Vassal presented by the King upon a Forefaulture It is thought That it is not due seing he is obliged to receive him and the Lands belonging to the King by the Forefaulture he does a Favour to the Superior by presenting one in his place The King having presented a Vassal to the immediate Superior some years after the Forefaulture of the former Vassal Quaeritur Whether the Person presented will have Right to the Duties become due since the Forefaulture or if the same will belong to the Superior Cogitandum But it seems that the King having no Right to the Lands which he cannot hold of a Subject but having only Right to present a Vassal in the interim the Duties should belong to the Superior seing the Property belongs to no Person And the Superiority draws unto it the Right of Property and the Superior not having a Vassal ought to have the duties of the Lands Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority And it is not his fault that he wants a Vassal seing hardly he could force the King to present The Lord Tarras Process against Strangers IF a French Man or Hollander v. g. should retire out of France or Holland hither and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was Quaeritur If Process should be Sustained against him here And if it should according to what Law should he be Judged Seeing our Judges are not presumed nor obliged to know any other Law but our own and the civil Law Answer They ought to have Process according to the Law of the Place where they Contracted which may be known upon a Commission Seing Mobilia and Immobilia habent situm viz. illa fixum ista vagum Quid juris as to nomina Debitorum utrum sequuntur personam Debitoris an Creditoris So that a Debt due by a Scotsman to a Stranger should be considered as a Scots interest res Scotica and a Testament concerning the same should be confirmed in Scotland Quid Juris as to annualrents when the Laws of the Place where the Creditor lives and our Laws do vary Quid Juris When the Debitor being a Scotsman and having granted Bond in Scotland has retired elsewhere both as to the effect of confirmation and Annualrent whether Lawful or no Lawful And if the Annualrent should be ever considered with respect to the Place where the Debitor was Incola the time of the contracting Procuratories of Resignation IF Procuratories of Resignation granted by Magistrates Expire by the decease of the granters Promise to Dispone not in writ IF any Person or their Heirs may be pursued for implement of a promise to dispone Lands and Heretages it being referred to the Oath of the Person that made the Promise or of his Heir if he be deceased that such a Promise was made Answer That it is thought that as when upon a Treaty and Agreement Writs are drawn Parties may Resile before Writs be subscribed There is eadem if not major Ratio in Promises which cannot be perfected but in Write Et nihil actum creditur dum quid supersit agendum nisi accedit Juramentum Vide Emphyteosis and what the Lawyers say in such Cases where Write is necessary Protections IF Persons cited to appear before the Justice or Council or imprisoned by order of the Justice or Council may be taken or arrested upon Caption or otherwise for a Civil Debt though they have not Protections Provision in favours of Bairns IT was provided by Contract of Marriage that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee and to the Bairns of the Marriage in Fee Quaeritur If the Husband having acquired a considerable Estate may he advantage his Heir or any other of the Children and give a greater Proportion to them than the rest Or will the Conquest belong to all equally Ratio Dubitandi It were hard that the Father should not have power to divide his Estate amongst his Children and in Consideration of it to oblige them to be dutyful On the other part the provision being in favours of the Children which is nomen collectivum universale indefinitum aequipollet universali 2do If that Power were allowed to a Father it may be abused and intending to marry again he may deal with one of his Children and giving more nor his Proportion he may by transaction settle all the Conquest on him and take a great part of it back from him in prejudice of the other Children 3tio By that Provision there is a Legitime settled upon the Children and as the Father cannot prejudge them of that which is given them by Law but the Bairns-part must divide equally so he cannot prejudge them of that Bairns-part provided by Contract unless by the same the Father had that arbitrium and Power given to him as sometimes it is Provision in Bonds A Bond of provision being granted by a Brother to a Sister for a Sum to be payed to her at the next Term after the Bond without mention of Heirs or Assigneys but with a Provision that if she should decease unmarried it should return to the Granter and his Heirs Quaeritur If she having assigned the Bond the Assigneys will have Right albeit she deceased unmarried And what the import of the said provision is whether a Substitution or a Quality of the Fee and a fidei commissum that she should not assign but with the burden of it Ancrum younger contra Mangertoun Provisions in Charters IF Lands be disponed to be holden of the Disponer with a Provision that if the Vassal be year and day at the Horn his Liferent shall not pertain to the Disponer but now as then and then as now shall be given and belong to himself Quaeritur Quid Juris Ratio Dubitandi Dolus futurus non potest remitti and being pactum contra legem
pendi solita ut in Contractu asseritur Et pro implemento dicti Contractus Charta a dicto Comite filio ejas concessa in anno 1617. dictus Menon investitus ejus haeredes dictas terras possederant donec Dominus Alexander Frazer Archiatreus Regius acquisito Jure Reversionis seu Retractus in dicto contractu Investitura contento Jacobo Hog nepote dicti Menonis praemonito ut moris est ut dictam summam reciperet praedictas terras revenderet Actione declaratoria dictas terras vendicabat Jure Retractus rite ut asserebat redemptas Excipiebat Reus Retractum seu Pactum de retrovendendo apud nos stricti Juris esse specifice implendum eo autem pacto cantum teâ—ras dictas redimendas non solum solutione dictae summae sed adjectum eas esse relocandas in tempus praedictum Locationem autem seu Assedationem nec oblatam nec depositam Replicabat Actor Pactum illud de Relocatione injustum usurarium illicitum esse terras siquidem ejus esse valoris ut merces Relocationis tantum non imaginaria sit Colonum enim pro iis pendere aut pendere posse quotannis sexcentas minas Et si Reo non solum dicta summa 3000 minarum sed etiam locatio adeo diuturna pro mercede adeo exili danda foret specie Locationis ipsam Proprietatem vel ejus Pretium consecuturum Adhaec Constitutione Jacobi 2 di Parl. 6. cap. 19. Statutum esse in Contractibus Hypothecariis quibus terrae alienantur sub pacto de Retrovendendo Relocando post Redemptionem Conditiones Assâ—dationes istas haud servandas terris redemptis nisi convenerit de justa mercede pensione saltem haud multum citra justam Firmam ut loquimur Respâ—ndebat Reus multum interesse inter Contractus Mutui alios puta Vâ—naâ—ionis Permutationis c. Ubi enim pecunia foeneratur credituâ— usurariae stipulationes illicitae sunt pacta alioquin licita reprobantur ut pacta Legis Commissoriae ea ratione quod debitori obaerato iâ—opi Creditor nihil non exprimet ea autem ratio in aliis Contractibus cessat in hoc casu nec enim in eo mutuum consequenter nec usura nec pactum usurarium nec Debitor inops sed Contractus Permutationis inter Rei avum virum haud locupletem Comitem praepotentem cui terras suas ut sibi si non necessarias saltem commodas flagitanti nedum leges inquiores dare Constitutionem autem praedictam Jacobi 2di in Contractibus pignoratitiis locum habere ubi terrae Creditori impignorantur ut ex verbis Constitutionis liquet when Lands are Wadset In casu praedicto nec Creditum nec Pignus esse avum suum nec pecuniam Comiti dedisse nec repetere posse cum dicto contractui Clausula Requisitionis ut loquimur non insit nec Reus praedictam summam petere possit nec Comes teneatur persolvere avum suum permutasse terras suas cum terris de Blairidryn ea lege satis iniqua ut Reo haud liceat terras avitas reluere Cum penes Actorem extraneum singularem successorem facultas sit redimendi si ea uti velit conditioni parendum terras tempore Permutationis incultas forte steriles fuisse in Regione saltuosa montana si sua parentum industria excultae meliores sunt id in suum detrimentum haud retroquendum Quaestio ista Domino de Castlehill referente in domum interiorem introducta inter Dominos disceptata Cum de ea sententiis variatum visa est altiorem indaginem requirere coram ipsis Partibus Patronis vocatis audienda Actores Lockheart c. alteri Cuninghame D. 359. Mitchel contra Litlejohn 20. June 1676. MR. Litlejohn TailÈiour by Contract of Marriage with his first Wife Clerk was obliged to provide whatsoever Lands Money or other Moveable Goods he should acquire during the Marriage to himself and to the Heirs of the Marriage And thereafter having Marryed a Second Wife _____ Mitchel and having provided her to an Annualrent he did grant a Right to her a little before his decease when he was on Death-Bed as was Alledged whereby he declared that in consideration that his Wife had been very dutiful and it was not reasonable that if the Marriage should dissolve before Year and Day she should want altogether the benefite of her Joynture therefore he wills that tho he should decease before Year and Day she should have a Right to the said Annualrent as it is restricted by the said Write to less than she was provided to And that the Contract of Marriage and Infeftment thereupon should be effectual pro tanto in the case foresaid And is obliged to pay the said Annuity This Deed being questioned upon these Grounds 1. That he could not do any Deed in prejudice of his Heirs on Dead-bed 2. That the Conquest being provided as said is to Heirs of his first Marriage both as to Lands and Moveables he could not by the foresaid Deed being a meer Donation prejudge the Children of the first Marriage Upon occasion of the said question the Lords thought fit to consider what the import of such Clauses of Conquest should be understood to be the same being so frequent And there being hinc inde Angustiae and difficulties on both hands seing upon the one it may appear hard that a Husband should be restricted by such Clauses too much and on the other hand that such Clauses should be ineffectual and in the power of the Husband to evacuate them seing all obligements ought to be understood cum effectu ut operentur And in end it was Resolved that the said Clause of Conquest being conceived in the terms foresaid in favours of the Heirs of the Marriage the Husband doth not cease to be Fiar so that for Onerous Causes he may dispose of whatsoever he acquires and the Heirs of the Marriage will be lyable to his Deeds and Obligements thereanent 2. It was thought That the Husband could do no Deed in fraudem of the said Clauses and of purpose to frustrate the same 3. Tho some of the Lords were of the Opinion that the Husband could not dispose of the Conquest but for Onerous Causes yet others thought that he might dispose thereof without fraud and for Rational Causes and Considerations as in the case in question upon the considerations abovementioned in favours of a dutiful Wife And it was so sound by the Major part albeit others thought indeed that the Husband notwithstanding of the foresaid Clauses might provide a second Wife and his Children by her out of the Conquest dureing the first Marriage if he had no other Estate and the Provisions be competent But that in the case in question the Deed foresaid was a Donation which the Children of the first Marriage being Creditors by the said Clause of Conquest
might question But the Lords Found That if the said Deed was on Death-bed the Defunct having not only granted an Heretable Right but having obliged himself his Heirs and Executors to pay the said Sum his Executry and Deads part would be lyable to the said Obligement even as to Moveables acquired dureing the first Marriage which may appear not to be without difficulty seing as to the Conquest during the first Marriage there could be no Deads-part the same being provided to the Children of the first Marriage as said is Tho the Heir of the Marriage may renounce to be General Heir and may take a course to establish the Conquest either in his own or in the person of an Assigney to his behoof and so not be lyable to the Defuncts Obligement without an Onerous Cause Yet it is to be considered whether if they should be served Heirs of the Marriage they would be lyable to the same seing all Heirs represent the Defunct suo ordine and are eadem perâ—ona Or if they be lyable only to the Defuncts Deeds and Obligements for Onerous Causes Item If such Provisions be not in favours of the Heirs of the Marriage but only of Bairns Whether the Bairns will be lyable to the Defuncts Debts And if all the Bairns will be lyable to the same as Heirs of Provision It is thought If Infeftment follow in favours of the Father and the Bairns of the Marriage they must be Heirs of provision to him and that all the Bairns if it be not otherways provided will be Heirs of Provision But these Points did not fall under debate Actores Cuningham alteri Dalâ—ymple Hamilton Clerk In praesentia D. 360. Galbraith contra Lesly eod die THE Lords Found That a Bond being granted by two Persons conjunctly and severally being Merchants and for the price of Merchant Ware the same could not be questioned upon that pretence that one of them was Minor the time of the granting the same It being offered to be proâ—en that he was then and is since a Trafficquing Merchant Monro Clerk Sir David Falconer having reported the same in Order to his Tryal when he was to be admitted a Lord of the Session D. 361. Irving contra Irving 22. June 1676. ALexander Irving of Lenturk raised Suspension and Reduction against John Ross in Strathmore and Francis Irving Brother to Drum of a Decreet of SpuilÈie and wrongous Intromission upon these Grounds that the Witnesses had declared falsely In swa far as being adduced by the Pursuer before the Council they had declared they knew nothing and in the Process before the Lords they declared fully and positively as to all that was Libelled And 2. They declared upon Quantities so exorbitant that the same do amount to the twentieth Corn Whereas in the Countrey where the Cornes grew they have scarce the third Corne. The Lords Found That the Decreet being in foro could not be questioned upon any Ground and in special upon the Testimonies of the Witnesses as false seing there should be no end nor period of Pleas and there being no Protestation for Reprobatores Some of the Lords were of Opinion that as a Decreet founded upon a false Write may be questioned so when the same is founded upon false Testimonies and the falsehood is evident and may be qualified sine altiore indagine the same may be likeways questioned And the Remedy of a Reduction of Decreets in foro being denyed only upon that pretence of Competent and Omitted ought not to be denyed in such cases seing the Ground foresaid that the Testimonies were false doth arise upon the Depositions of the Witnesses and was neither known nor competent to the Defender who is not allowed to see nor to question dicta testium And a remedie which in Law and Reason ought to be allowed is not taken away because it is not protested for by a Party who for the time did not know that there were any Ground for the same Newbyth Reporter Gibson Clerk D. 362. _____ contra Sheil eod die A Comprysing being deduced at the Instance of an Assigney against the Representative of the Debitor as lawfully charged and the Compriser upon his Infeftment having intented a pursute for Mails and Duties It was Alledged That the Cedent was debitor to the Defunct so that the Debt due to the Defunct did compense the Debt due by him and the Ground of the Comprysing being satisfied the Comprysing is extinguished Which case being Reported to the Lords they had these Points in debate and consideration amongst themselves viz. 1. That Compensation is only of personal Debts and of Sums of Money de liquido in liquidum but is not receivable in the case of Real Rights and Lands and Pursutes upon the same Seing in such processes there is no Debt craved but the pursute is founded upon a Real Right And some of the Lords being enclined to think that the Alledgance is not founded upon Compensation but upon Payment or the Equivalent viz. That the Cedent habebat intus and in effect and upon the matter was satisfied being Debitor in alse much as was due to him by the Defunct And the Lords are in use to favour Debitors whose Lands are Comprised and in order to extinguish Comprisings to sustain process for Compt and Reckoning and declaring the same to be extinct not only by Intromission but by Compensation Others were of the Opinion that tho Compensation ipso jure minuit tollit obligationem where it is proponed yet if the same be not proponed before the Decreet whereupon the Comprysing proceeds and when both Debts are in finibus of a personal Obligement the Debt contained in the Comprysing cannot be said to have been payed before the Comprysing and after the Comprysing is deduced it cannot be extinguished but either by Intromission within the Years of the Legal or by Redemption 2. Whatever may be pretended as to the Cedent that he could not be in bona fide to compryse for a Debt due to him having alse much in his hand as would satisfy the same yet such pretences are not competent against the Third Person having bona fide comprysed or having Jus quaesitum As in the case of a Horning upon a Decreet it could not be obtruded to the Donator that the Debt was satisfied The Obtainer of the Decreet being Debitor to the Defender And if this should be sustained expired Comprysings and Infeftments thereupon being now a most ordinary surety may be easily subverted upon pretence that the Cedent was Debitor in Sums equivalent to the person against whom the Comprysing is deduced And there is a great difference betwixt payment and satisfaction either by actual payment of the Debt or by Intromission with the Maills and Duties of the Lands comprysed which is obvious and easie to be known and betwixt the pretence of satisfaction by Compensation seing payment is exceptio in rem and extinguisheth Debts as to all effects and Intromission is so notour that
spe tantum altero est actu nostrum sed existente conditione resolvitur Nam meum est quod certâ lege meum est Jus Fluviat p. 790. n. 145. deinceps Cautioner and Relief IF a Cautioner be Denounced for his Cautionry will the Principal be lyable to relieve him of the loss of his Escheat Ratio Dubitandi The Principal is obliged to relieve him of what he should pay for him but not of the prejudice he should sustain for his Contumacy and Rebellion through his not payment Chaplainrie LAnds being holden of a Chaplain a Bishop being Patron if there be not a Chaplain and the Bishop delay or refuse to present what course shall be taken by the Vassals Heir or singular Successor to get Infeftment If the Bishop may not be pursued and the Director of the Chancery to hear and see him decerned to present a Chaplain and to exhibite to one of the Clerks of Session the Presentation to be registrat to the effect it may be known and patent to the Leidges and that within _____ days after he be charged And in case of disobedience verified by a Horning against him upon the Decreet The Director of the Chancery to direct Precepts for infefting of the Vassal Seing by Act of Parliament anent the Superiority of Chaplainries and such like The Patron to the Chaplain is appointed to be Superior to the Chaplains Vassals Quaeritur If Chaplains hold of the Bishops the Bishop will be Superior Answer It is thought not seing the said Act of Parliament is only in favours of Laick Patrons and was made when the Bishops were suppressed Charge to enter Heir AN appearand Heir being charged to enter Heir in General and renouncing Quaeritur If there may be a Comprising or Adjudication against him unless he be charged to enter Heir in Special Ratio Dubitandi That frustra should he be charged to enter Heir having already renounced Yet it is thought he ought to be charged seing a special Charge to enter Heir is Instar and in place of a Special Service and Infeftment thereupon and the Heir may repent that he renounced and may be better advised when he is charged to enter Heir in Special Chattels Real LIferents Non-entries Ward and such like Casualities that are successive when they are gifted they become real Chattels and will fall to the Executors of the Donator as is thought Quaeritur If when they are not gifted they should be considered also as Chattels so as to belong to the Executors of the Superior and not to his Heirs and Successors of the Land Cogitandum Children and Creditors IF a Father grant Bonds to his Children and thereafter contract Debt so that he is not in a condition to satisfie both his Creditors and Children Whether the granting of Bonds for Onerous Causes will import a Revocation of the Childrens Provision At least will the posterior Creditors be priviledged and preferable to the Children Childrens Provisions A Father having disponed to his Son of the first Marriage the Fee of his Estate with power to burden it with 40000 merks for provision of his remanent Children allanerly Quaeritur If he being then married upon a Woman of that age that he could not have Children by her should thereafter marry May he provide any part of that Sum to the Children he had thereafter of the last Marriage Or if the remanent Children in whose favours the Faculty is reserved can only be understood of the remanent Children of the first Marriage he having then five besides the Heir Mr. Alexander Gibson contra his Brother Civitas CIvitates Municipia intelliguntur nomine Reipublicae eis competit beneficium Legis leg 3. cod de Jure Reipub. Sc. Rempublicam ut pupillam extra ordinem juvari Frischius Tom. 2. exercit juris publici exercit 2. n. 17. sequen Praescriptio non currit minori sed Civitati Ibid. 35. Propter tenuitatem civitas novum vectigal imponit Ibid. 37. Gaudet Praescriptione centum annorum Ex solo pacto sine traditione quibusdam casibus habet in rem actionem Ibid. Vsus-fructus ei relictus durat centum annis Ibid. Clauses in Contracts of Marriage THe Contract of Marriage betwixt Alexander Sandilands and Agnes Sandilands his Wife Daughter to Robert Sandilands Dean of Gild beareth that provision Viz. That the said Robert and his foresaids are obliged to the said Agnes and her Spouse that at Robert his Decease the said Agnes his Daughter shall be esteemed a Bairn of the House and Family And shall succeed to her Part and Portion Natural equally with the remanent of Robert's Bairns to all Sums Plenishing Goods and Gear and others that should pertain to the said Robert the time of his Decease The said Alexander is obliged and his foresaids that whatever Benefite shall fall to the said Agnes or her to succeed to by her Fathers Decease or by vertue of the said Obligement to provide the same after he should get it to himself and her in Conjunct-fee and Liferent and to the Bairns betwixt them which FailÈieing his Heirs and Assigneys 9 January 1657. Registrate 1 March 1671. The said Alexander is obliged to provide the Conquest to himself in Liferent and their Bairns in Fee The Contract of Marriage betwixt John Hamilton Writer and Rachel Sandilands the other Daughter of the said Robert Bears That they accept the Tocher in satisfaction of all other Sums Executory Debts Goods and Gear and others whatsomever which was provided to the said Rachel or which may fall or pertain to her or may be claimed by her by Decease of the said Robert or her Mother Mause Weir All which she and her Husband Assignes to the said Robert his Heirs Executors or Assigneys to be Disponed at their pleasure By the Clause of Conquest the said John is obliged to provide the same to himself in Liferent and the Bairns in Fee And to that effect to insert the Bairns Names in the Writes The said Rachel if her Husband Decease before her is to have if there be no Children the half and if there be the third of the plenishing of the House the time of his Decease which is to be made free of Debts by his Heirs and Executors Quaeritur If the Obligement to succeed to all that should pertain to the Father should be understood only as to a Bairns Part and should not be extended to the Deads-part If what should fall to Agnes after her Fathers Decease should belong to the Bairns of the Marriage though the Marriage be disolved through the Husbands Decease before the Father Robert his Decease If Rachel the other Daughter notwithstanding her Renounciation will come in as one of the nearest of Kin at least as to Deads Part Viz. Deads third and the half of a Bairns Part. By Contract of Marriage the Husband is obliged in the first place to provide 30000 Merks to his Wife in Liferent and the Heirs of the Marriage presently And to the other
he is Curator Bonis A Child being confirmed Executor to the Grandfather upon the Mothers side and dying without Issue and either Brothers or Sisters Will the Father have right to the Executory as Executor to the Child 2. What if the Child decease before the Testament be execute 3. Can the Father be Executor ad non executa to the Grandfather Mr. Andrew Marjori-banks Daughter Executors nominate though Strangers and not Universal Legators before King James his Act of Parliament had right to the whole Executory and since to the Third Quaeritur If they decease before Confirmation Will they notwithstanding have right as Legators If they be Confirmed and die immediatly before the Testament be execute Whether the Executor-Stranger will have right to the Third The Office of Tutrix ceaseth by her Marriage but not that of Executrix Quaeritur Quae Ratio Discriminis Answer She being in Tutela herself cannot be Tutrix to another 2. An Executor has not nudum Officium but is Heir in mobilibus and for that Reason a Woman may be Executrix though incapable munerum virilium Testaments appear to be Executed by Sentences Seing after Sentence the Executor may Assign Albeit quod est Cessibile may be Comprysed or affected with the Cedents Debt Yet if after Sentence the Debts and Goods be extant The Creditors Legators and nearest of Kin will be preferable to the Creditors of the Executor Because though they may seem to be secured by Caution yet the same is that the Inventar shall be made forthcoming and tutius est incumbere c. And the Executor is Haeres fideicommissarius or Curator bonis and if he Sell or Assign praesumitur That he doth so that he might satisfy Creditors Legators and nearest of Kin but where the same is evicted for his own Debt it is upon the matter Unjustice and Malversation Seing the Interest and Right of an Executor is jus anomalum Participium being partly considered in Law and constructed to be haereditas in mobilibus and partly Officium to execute the Defuncts Will if he Dye Tested and the Will of the Law if he Dye Intested And therefore if a Woman be Executrix albeit she be only Dative if she marry she is not in the case of a Tutrix and Curatrix Albeit it may be thought that an Executor Dative is Curator datus bonis and she ceases to be Tutrix and Curatrix if she Marry because these are only nuda officia But she continues still to be Executrix And yet if an Executor Dye before Execution his nearest of Kin will not succeed to him in that Interest as Executor to him So that he may be confirmed Executor to him in the Goods confirmed but there must be a Testament and Executor ad non Executa not to him but to the former Defunct Whereupon diverse Questions arise And first if an Executor nominate die after the Confirmation but before Execution will he have by the Act of Parliament the third of all the Goods of the Deads part or only in so far as the Testament is Execute Ratio Dubitandi Before the Act of Parliament the Executor had the third entirely viz. The Defuncts part without respect to the Execution But only the confirmation being in place of addition And by the Act of Parliament he is restricted to a third of that And on the other part since that Act of Parliament It is presumed according to that Law The Defunct intended only the third of his part to be given to the Executor in respect of the Trouble and pains he is at to Execute and recover bona Defuncti and therefore he should only have a proportion of what is Execute If the Executor nominate Decease before he confirm will he have any part of the Deads part Which will be cleared by an Answer to the former When the Procurator Fiscal is confirmed after an Edict served Whether will the nearest of Kin being Majors the time of the Confirmation and not owning their Interest be excluded So that they can have no Action against the Procurator Fiscal or Bishop for the Goods contained in the Inventar Quid Juris as to the nearest of Kin for the time And if he be Reponed whether will he have action of Compt and Reckoning or must he reduce the Confirmation so far as that he may be confirmed The Procurator Fiscal being satisfied of all Charges Ratio Dubitandi That the nearest of Kin is not nomen juris to succeed or to have any thing belonging to the Defunct unless he represent him which he cannot unless he be confirmed Executor Quid juris In the case of an Executor Creditor after he is satisfied will the nearest of Kin be excluded And if not what is the habilis modus to get a right setled in his Person Ratio Dubitandi In suffering the Creditor to be confirmed it seems that he has disclaimed his Interest and not without injury to the Memory of the Defunct And the Creditor being once confirmed the nearest of Kin cannot be confirmed And having Forefaulted his Interest it may seem quod indigno aufertur est Fisci quod nullius est est in bonis Regis Quaeritur When Testaments are Execute so that there is no place to a non Executa And if as to Goods whereof the Executor is presently in possession it be not fully Execute And as to nomina and Debts it be not Execute by Sentence though they be not uplifted Seing after Sentence the Executor may Assign And in that case may not the Executors Executor confirm the same as belonging to the Defunct Though after Sentence the Debt be in bonis of the Executor and confounded with his own Estate If there should be a Competition betwixt the Executors own Creditors and the Creditors of the Defunct or his Relict and Bairns Would not the Creditors and the Relict and Bairns of the Defunct be preferred to the Creditors of the Executor upon that Ground that they are not simply the Executors Goods but in Trust and is a fidei-commissum for the use of the Defuncts Creditors and his Relict and Bairns So that both the Executors Creditors and Fisk ought to be excluded upon any such Competition If the nearest of Kin will not be Executor Quaeritur What remedy will be competent to the Creditors not of the Defunct but of the Executor Seing there is an Act of Parliament in case of an Heirs not entering But not in the case of an Executor in behalf of Creditors If the Commissars should confirm the Creditor of an Executor nominate and the Executor decease will the next nearest of Kin have Action against the Executor Dative to be Comptable And whether that Executor will have the priviledge of an Executor Creditor And if he may be pursued at the instance of other Creditors who are not Creditors to the Defunct An Executor being nearest of Kin and confirmed but immediatly dying Quid juris will his nearest of Kin be confirmed Executors ad non
the Buyer may and ought to take notice of the same whereas Compensation is but quasi solutio and it has never effect until it be proponed That point was also in consideration with the Lords Whether Compensation can be proponed by any person but such as has Right to the Debt And as to this point there were different Opinions and some of the Lords were of the Judgement that any person having interest to defend against Comprysings and pursuites upon the same might alledge they were satisfied in manner foresaid But others were of the Opinion that no person can pretend to compence but he that could discharge the Debt whereupon he would compence and consequently must have Right to the same And in the case in question neither a confirmed Testament containing the Debt due to the Defunct nor any Right to the same was produced The Act of Parliament K. Ja. 6th Parl. 12. Cap. 141. Being so positive that Compensation is only de liquido in liquidum before the giving of Decreets and never after the giving thereof Some of the Lords were of Opinion that tho the Defender had Right to the Debt due to the Defunct Compensation could not be received But some of the Lords having desired that the advising of these points being so considerable should be delayed till to morrow they were not decided Thesaurer Depute Reporter Gibson Clerk D. 363. Lamingtoun contra Raploch eod die A Suspension being craved Upon that reason that the Charger had been Curator and ante redditas rationes could not charge him with any Debt It was Answered That the Complainer being to be Marryed he desired the Charger and some others to be his Curators to the effect they might authorize him to Contract and the Charger had never intrometted Some of the Lords were of Opinion That if it could be verified by the Complainers Oath that the Charger had no Intromission and that these that Intrometted were Responsal In which case by the Civil Law there is no actio tutelae but against these who intrometted the others who had not Intrometted being only Lyable in subsidium the said reason should not be sustained But it being pretended that by our custom all Tutors and Curators are Lyable whether they intromet or not without out distinction and that Pupils may take themselves to any of them Tho it was not made appear that the said point was ever debated or decided yet the Lords Ordained the Complainer to give in a Charge against the Curator and the Compt to be discust upon the Bill Glendoich Reporter D. 364. E. Dumfermling contra Callender June 1676. BY Minute of Contract betwixt the deceast Earl of Callender and Dam Margaret Hay Countess of Dumfermling he was obliged to Infeft the said Lady in the Lands and Barony of Livingstoun in Liferent and Conjunctfee and whatsover other Lands and Sums of Money should be conquest during the Marriage He is obliged likewayes to grant surety of the same to her in Liferent in the same manner as of the former Lands And in case of no Issue of Children the one half of the said Conquest to be disposed upon as the Lady shall think fit And the Earl of Dumfermling having intented a Pursute as Assigney by his Father who was Heir to the said Lady his Mother for implement of the said Minute for declaring what Lands Sums of Money and others were conquest by the said Earl dureing the foresaid Marriage and for Infefting the Pursuer in the half of the said Conquest It was Alledged That the said Obligement and Clause of the Minute as to the Conquest are conditional viz. In case of no Issue of Children and that the said condition did not exist viz. There being an Child procreate of the said Marriage The Lords upon Debate in praesentia and among themselves did Find that the said Condition did exist In swa far as tho there were Children of the Marriage yet there was no Children or Issue the time of the Dissolution of the Marriage by the Decease of the Lady Albeit It was urged That these Conditions si liberi non extiterint vel non sint procreati and that Condition si non sint liberi superstites were different in Law and in the conception and import of the same And in the first case si non sint liberi sine adjecto tempore decessus vel dissoluti Matrimonii deficit ipso momento that there is a Child And the Condition being in the Terms foresaid in case of no Issue both in Law and in Propriety of Speech cannot be otherwayes understood and Interprete And in Claris non est locus conjecturae aut interpretationi which is only where words are Homonymous or Ambiguous And where a Clause is of it self such as may be understood without addition to make any upon pretence of the intention of Parties is not interpretari sed addere intentio in mente retenta nihil operatur And that if there had been Children of the Marriage who had Lived to that Age that they had been Marryed and had had Children who had all died before the Dissolving of the Marriage It could not be said without absurdity that there had been no Issue And both in Law and by our custom when there is any Advantage given or provided by the Law or by Contract in favours of the Husband in case of Issue It is ever understood si liberi sint procreaâ—i tho they do not survive As in the case of a Courtesy of Scotland And that Conditions ought to be taken strictly and according to the Letter especially in this case the Provision foresaid that the Lady in case of no Issue should have either a Fee or the half of the Conquest or a Faculty to dispose of the same It was farder Alledged That the said Clause doth not import that the Lady should have the Fee or the half of the Conquest but only a personal Faculty and Power to dispose of the half of the Conquest which she had not used And nevertheless it was Found by plurality that the said Provision imported a Fee In respect the said Minute was a short paper drawn by my Lord Callender himself who was altogether ignorant of the stile and conception of Writes And if it had been extended as it was intended it could not otherwayes be extended but the Fee behooved to be provided to the Lady as the half of the Conquest And that the half of the Conquest should be disposed of by the Lady did import that she should have a Fee and Dominium the very nature and essence of Property consisting in potestate Disponendi Some of the Lords were of Opinion that the said Clause did import only a personal Faculty Upon these Considerations 1. That the Right of Dominium being the highest Right and Interest can be given it cannot be thought to be given but when the words are such as are not applicable to any other interest whereas the said words do quadrate alse