they were publickly called to the Bar and received without any objection so that now none is competent 2ly That there is no relevant Exception yet alleadged for the being a Town Officer is no legal Exception neither to be of a mean condition nor to be of a small Estate if he were worth the Kings Unlaw and for the presumptions they were but meer conjectures for it was free for a man to make his Disposition all with his own hand or before Witnesses and what his motives has been to do it cannot be known and so ought not to be presumed fraudulent nam nullum vitium presumitur The Lords having fully considered this case and having Debated whether Witnesses at all were receivable to astruct the Date of a holograph Writ and also whether these Witnesses adduced were sufficient they found that in respect of the presumptions of Fraud adduced these two Witnesses were not sufficient to astruct without further Adminicâ—es either by Witnesses of unquestionable Credit or by Writ Procuratorfiscal of the Commissariot of Edinburgh contra Thomas Fairholm Iune 23. 1665. THomas Fairholm being Charged to give up an Inventar of the Goods and Gear pertaining to umquhil Alexander Deninstoun whose Daughter he had married He Suspends on this Reason that the Defunct had granted a Disposition to one of his Daughters of his hail moveable Goods and sums of Money so that he had nothing the time of his Death and there needed no Confirmation but he might lawfully possess by vertue of his Disposition and there was no Law to force Persons in such a Case to Confirm neither had it ever been sustained by the Lords It was answered that it was juris publici to have the Goods of Defuncts Confirmed that nearest of Kin Children Creditors and Legatars might know the condition thereof and this Defuncts moveables albeit Disponed yet not Delivered remained in bonis defuncti and so behoved to be Confirmed The Lords having Read the Disposition and finding it to be general omnium bonorum that he had or should have the time of his Death and there being nothing alleadged of any onerous Cause or that it was before his sickness albeit the Case was new yet they found there was necessity of Confirmation in this Case But if it had been a Disposition only of special things as Bonds or Goods or had been for any onerous Cause or had been made in leidg pousti and any symbolical Delivery the Lords were not so clear in it but resolved to hear such Cases in their own presence when they should occur Collonel James Montgomery contra Wallace and Bouie Iune 24. 1665. THe Collonel as Heretor of the Miln of Tarboltoun having pursued Bouie for abstracted Multures of Drumlie It was alleadged for Bouie and Wallace of Garricks who had Disponed to him with warrandice absolvitor because Wallace and his authors were Infeft in the Milns and Multures before the Pursuers Infeftment of the Miln The Pursuer Replyed that the Thirlage was Constitute by a Decreet in Anno. 1569. against the Tennents of Drumlie therein mentioned The Defender answered First that the Heretor was not called 2ly That it did not appear that these Tennents did dwell in Drumlie Wallace there being two Drumlies lying contigue one called the Dinks Drumlie the other called Drumlie Wallace 3ly That for any Possession they offered them to prove that it was interrupted from time to time by going to other Milns The Lords having Ordained Witnesses to be Examined hinc inde whether the Tennents in the old Decreet did possess Drumlie Wallace or the Dinks Drumlie 2ly What Possession the Pursuer and his authors had 3ly What Interruptions the Defender and their authors had many Witnesses being Examined hinc inde It was clear that since the year 1653. when Capringtoun the Pursuers author died there was no Possession and there was not above twenty eight years Possession proven before because there was no Witness of that age that could have been of Discretion fourty years before the year 1653. but they found it proven that the Persons mentionate in the old Decreet or some of them were Possessors of Drumlie Wallace and also there was a Tack produced set by the Pursuers author to one of the Tennents of Drumlie wherein it was provided that the Tennent should relieve him of the Multures and did not express what Miln The Lords found the old Decreet although the Master was not called thereto was not sufficient alone yet with a long Possession thereafter they found the same was sufficient to Constitute the astriction and found the Interruptions by going to other Milns were not so frequent and long but that they might have been private and Clandestine and the Probation during memory before this contraversie was found to instruct anterior Possession to compleat prescription Irwing contra Strachan Eodem die ALexander Strachan as Assigney by Patrick Gordon Charges Iohn Irving to make payment of a Bond of 500. merks which being Suspended on this Reason that the Cedent was Debitor to the Suspender in a greater sum being oblieged for the grouth of certain Lands of the Cropt 1633. and certain Bolls of Meal as the Duty thereof The Charger answered that this was not liquidat against him nor against his Cedent before his Assignation The Suspender answered that it was liquidate before in so far as there was a Decreet of Liquidation obtained against the principal Party for whom the Cedent was Cautioner in the Contract which must be sufficient against the Cautioner albeit he was not called because his obligation was but accessory unless he could instruct Collusion and this Decreet of liquidation proceeds upon Probation of Witnesses The Lords sustained the Compensation and found the Liquidation sufficient being against the Cautioner though he was not called and against this Assigney seing the Decreet was before the Assignation Alexander Ferguson contra Steuart of Askeoge Iune 27. 1665. ALexander Ferguson having obtained a Presentation from the King as one of the Prebenders of the Chapel-Royal and thereupon a Decreet conform and having Charged Steuart of Askeoge he gives in his special Charge that the Paroch of Inchgarth which is now annexed to Rothesay belonged to his Prâ—bendrie as being a part of the Patrimony of the Chapel-Royal It was answered for Askeoge that he bruiks the Teinds by vertue of a Tack granted by Mr. Ninian Steuart Minister of Rothesay whereof this Kirk now annext is a part and that there is nothing appears to instruct that these Teinds were ever Mortified to the Chapel-Royal or that the Chapel-Royal was in Possession thereof The Pursuer answered that seing he had the Kings Gift and Decreet conform it was sufficient unless the Defender would alleadge that the said Mr. Ninian Steuart had a better Right or was in Possession for the King being the Common Author and Fountain of Rights His Majesties Gift is sufficient against any that show not a better Right and as for the Tack produced it is null
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
they searched for him immediatly after The Lords Repelled both Defenses seing the Escape was in day light during which the Towns Officer should Guard the Prison Elizabeth Nisbet Lady contra Murray Eodem die ELizabeth Nisbit pursues a Poinding of the Ground of certain Lands wherein she was Infeft by Iames Wood her Husband Compearance is made for Patrick Murray who alleadged that he is Infeft by her Husband his Debitor in the same Lands and ought to be preferred It is answered for the Lady that she ought to be preferred because both their Annualrents being base albeit her Infeftment be posterior Yet her Husbands Possession being her Possession and she being Infeft before Patrick Murray's Infeftment was cled with Possession must be preferred It was answered for Patrick Murray First That a Husbands Possession should be the Wifes Possession cannot be understood in an Annualrent because her Husband never Possessed an Annualrent but the Property This the Lords Repelled and found the Possession of the Property as jus nobilius to contain the Annualrents eminenter 2ly Patrick Murray alleadged that the Husbands Possession being the Wifes is only introduced in favours of Contracts of Marriage favore dotis That because Wives cannot Possess during their Husbands life therefore his Possession is accompâ—ed theirs But this Infeftment in question is not founded upon the Contract of Marriage but upon a posterior Charter of a different Tenor. 3ly Patrick Murray used citation before Câ—ndâ—esmess next after the Ladys Infeftment and thereupon obtained Decreet in March which must be drawn back to the Citation So that the Husband could have no Possession betwixt the Ladys Charter and his Diligence there being no interveening Term. It was answered for the Lady that this Priviledge is allowed to Wifes that their Husbands Possession is theirs during their Marriage favore datis which may be without a Contract 2ly The Husband being in present current Possession from the very Date of the Wifes Seasine his Possession is sufficient to validate hers The Lords found the Ladyes Infeftment to be first validat by Possession It was further alleadged by Patrick Murrayâ— that this Infeftment was donatio inter virum uxorem not being founded on the Contract of Marriage which was satisfied before at least it is to the prejudice of him a lawful Creditor who was Infeft before the Lady and therefore seeing the Ladys Infeftment is so free and lucrative both parties being now Disputing the Possession and power therein The Ladys Infeftment cannot prejudge him That the Contract of Marriage was satisfied he condescends thus that the Husband was oblieged to Infeft his Wife in certain Lands and to make them worth 18. Chalders of Victual or otherwise at her option to Infeft her in an Annualrent ita est she made her option and was Infeft in the Property after which she cannot return to this Annualrent in question It was answered for the Lady that the Clause being conceived in her option must be Interpret her option not to receive the Infeftment but to enjoy either of the two she pleased First A Seasine cannot import her choise which might have been given by her Husband without her knowledge upon the Preccept contained in the Contract of Marriage unless it were instructed that she did accept the same by a Seasine propriis manibus or otherwise and that her Infeftment was a valid effectual Infeftment 3ly Albeit that Article of the Contract of Marriage were satisfied by taking her choise yet she being thereafter Infeft upon her Charter produced in her Liferent Lands and in the Annualrent in Warrandice thereof or with power to her to make use of the Annualrent it self principaliter at her option albeit her choice once made will exclude her from the annualrent principaliter yet not in so far as she is Infeft therein to warrand and make up the principal Lands which can be accounted no Donation nor Deed in prejudice of a Creditor because it doth but make real and effectual the personal obliegement of warrandiceâ— contained in the Contract It was answered for Patrick Murray that this alleadgance non competent hoc loco but he must only poind the Ground until the Lady obtain a Declarator of what is defective of her Liserent Lands but cannot come in by way of Reply The Lords found that the Ladys acceptance of the Liferent Infeftment satisfied the obliegement in the Contract of Marriage and did not sustain the posterior Charter to give her any further choice but sustained the Right of annualrent constitute therein in warrandice of the Liferent Lands hoc loco and ordained the Lady to condescend upon the several Rooms what they payed and what was wanting that she might be preferred in the first place and Patrick Murray in the second place Alexander Livingstoun and Schaw of Scrnbeg contra Lord Forrester and Creditors of Grange Eodem die ALexander Livingstoun as Assigney by Mistriss Margaret Forrester and Sornbeg her Husband to some Debts owing to her by her Father The umquhil Lord Forrester having Charged the remnant Daughters and Heirs of Line craves Adjudication of the Estate of Forrester and Barony of Grange wherein the Lord Forrester Died Infeft Compearance is made for a Creditor of Grange who produces a Back Bond granted by the Lord Forrester to the Laird of Grange bearing that the Infeftment was in trust to the use and behove of the Laird of Grange and only to the Lord Forresters behove for Relief of Debts he should be ingaged in for Grangeâ— and alleadged that he being Granges Creditor and now insisting against Grange who has renunced to be Heir for Adjudging of the Estate of Grange for Granges own Debt he has good Interest in this Process to alleadge no Adjudication of Grange Estate because it is only in Trust except in so far as may be extended to my Lord Forresters Relief and if the Pursuer condescend upon any Distress or Ingagement he will instantly relieve the same The Pursuer answered that he being now in an anterior Diligence to this Party ought not to be stopped in his Diligence but must be admitted to Adjudge from the Lord Forresters Heirs whatever was in his Person And the other Party may also proceed according to his Diligence to Adjudge the Back Bond and when he pursues thereupon he shall have an answer 2ly There is no reason to stop the Adjudication and to force the Pursuer to condescend upon my Lord Forrestersâ— Debts or Interest because a Creditor cannot possibly know them and therefore Adjudications are always granted generally of all Right the Debitor had and is the only ground upon which the Adjudger can pursue the havers of the Debitors Rights to Exhibit and Deliver them and thereupon to found Processes and Condescendences but cannot be urged to condescend before he obtain Adjdication and also insinuat that he would take his Adjudication with the burden of the Back Bond But some of his Advocats resiled therefrom The Lords having considered the Case
Eodem die MAster Andrew Birny having granted a Bond to Alexander Short blank in the Creditors Name he for an equivalent Cause delivered the same to David Henderson who filled up his Name therein and Charges Mr. Andrew therefore he Suspends on a Reason of Compensation upon a Debt owing to him by Short to whom he delivered the blank Bond for whom he became Cautioner before he granted the Bond and payed the Debt partly before and partly after this Bond so that Henderson by filling up his Name being Assigney and Short Cedent payment or compensation against the Cedent before the Assignation is relevant against the Assigney It was answered that in this Case compensation is not relevant because the very Delivery of a Bond in a blank Creditors Name imports that the Receiver thereof may put in any Mans Name he will and he may never make use of Compensation against him whose Name is filled up otherwise why should the Creditors Name have been left blank which if it had been filled up it behoved to have had an Assignation which is but a Procuratory in rem suaem so that the Procurator can be in no better state nor the Constituent but the blank makes the Person filled up Creditor principally The Lords found Compensation not relevant against a Person whose Name was filled up in the blank being a singular Successor to him who first received the Bond. Mr. William Chalmers contra Wood of Balbegno Eodem die MAster William Chalmers Parson of Feltercarn pursues Reduction of a Tack of the Teinds of the Paroch granted by his Predecessors on this ground that it is null by Act of Parliament as wanting Consent of the Patron The Defender alleadged Absolvitor because the Pursuer had Homologat his Tack in so far as he had received payment of the Duty conform to the Tack which was a clear acknowledgement thereof It was answered that this could only be an Homologation for the years received and could not Homologat the Tack itself because the Tack was a standing Right valid till it were Reduced and the Pursuer could get no more then the Tack-Duty till he should Reduce the same The Lords found this no Homologation to validat the Tack Lord Justice Clerk contra Home of Linthel the Procurator-Fiscal and Officers February 28. 1668. THe Lord Iustice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony The Officers Poinded an Ox in October after the Plowing was begun The Lord Iustice Clerk pursues a Spuilzy as being Poinded in Labouring time and insisted against Linthel as Depute who gave the Decreet and Precept to Poind and as he who knew of the Poinding of the Ox by the Officer before he was Delivered and commanded to Deliver him and against the Officer who Poinded and the Procurator Fiscal who by the Executions of the Poinding produced Received the Ox from the Officer at the advising of the Cause Linthel having Deponed by his Oath that the Officer had told him an Ox was Poinded and he commanded the Officer to Deliver him and that he knew not he was a Labouring Ox so that that member not being proven the question was whether Linthel as Deput giving a Precept to the Officer to Poind in common form was lyable for the Spuilzy if the Officer did illegally Poind and so was answerable for the Fault of the Officer The Lords found him not lyable and therefore Assoilzied Linthel and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal especially seing the Defenders defended themselves with the Poinding and themselves produced the Execution and for the violent profits the Lords Decerned 5. Shilling for every day from October to May inclusive being Labouring time and that yearly since the Spuilzy till the Sentence Duke Hamiltoun contra Maxwel of Moreith February 29. 1668. THe Duke of Hamiltoun as Collector-General of the Taxations having Charged Maxwel of Moreith he Suspends upon this Reason and alleadges that he had Imparked and Inclosed a ten Merk Land since the Act of Parliament 1661. anent the Inclosing of Grounds by which all Lands to be Inclosed thereafter are to be free of all publick Burdens It was answered that the Act of Convention was posterior and had no such exception but on the contrair took away all former exceptions It was answered that an Act of Parliament cannot be Derogat or Abrogat by an Act of Convention The Lords found the Reason relevant notwithstanding of the Act of Convention Ioanna mâ—Mâ—alexander contra Charles Dalrymple Iune 9. 1668. IOanna mâ—Mâ—alexander a Sister Daughter and one of the nearest of kin of Umquhile Elizabeth Dalrymple pursues a Reduction of the said Elizabeth her Testament whereby she nominat Charles Dalrymple her Brothers Son her Executor and universal Legator upon this Reason that in the time of the making that Testament she was not compos mentis but fatuous and insensible The Lords having appointed the Witnesses of the Testament and other Witnesses to be Examined thereanent the Witnesses in the Testament and Writer thereof being Examined Deponed that she was in her right Miâ—â— and gave order for drawing of the Testament and gave order to Subscribe it the other Witnesses Deponed that about that time for several weeks before and some time after the Defunct was fatuous and not in a right Mind and to every question proposed to her she answered alwise yea yea and some words of Ravery which she frequently spoke The Lords having also caused Re-examine the Testamentar Witnesses that it might appear whether she did only answer to Interrogators as when it was answered whether she would have Charles Dalrymple her Executor and universal Legator and whether she said yeaâ— yea and whether she gave Direction without a forgoing question by words that might signify her Sensibility And having considered the whole Testimonies they found that Probation most pregnant that she was Fatuous and insensible at the time of the making the Testament and therefore Reduced albeit the Witnesses were Extraneous that proved and were not present at making the Testament at which time a lucide interval of a Person Distempered by Disease not constantly Fatuous might have been sufficient This was stoped till it were further heard Sir Iohn Gibson contra Iames Oswald Iune 13. 1668. SIr Iohn Gibson and Iames Oswald having mutual Declarators of Property of a peice of contraverted Ground lying on the Mâ—rch between two Gairs or Bentish Strypes of Ground through a Moor equal number of Witnesses being Examined for either Party one Witnesse for either side proved 40. years constant Possession of the Party Adducer and that they did interrupt the other Party and turned away their Cattel when they came over some of the witnesses did prove either Party to have had Possession above 40. years since but did not prove that they knew the same constantly so Bruiked neither did they know any thing to the contrary and
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents since the Date of the Wodset The Lords having considered the Woodset by which the Wodsetter bare the publick Burden found the said Clause of the Act not extended to make the Defender comptable since the Date of the Wodset but only since the Date of the offer to secure the Wodseter conform to the Act of Parliament by vertue of an other Clauses of the said Act Ordaining all Wodsetters to compt for the superplus and to possesse the granter of the Wodset he finding Caution for the Annualrents or to restrict to his Annualrent Lord Burghly contra Iohn Syme Eodem die LOrd Burghly and his Authors being Infeft by the Abbot of Dumfermling in the Coal-heugh of Keltie with power to win Coals within the bounds of the Lands of Cocklaw and Losodie pursues John Sime Heretor of Losodie for declaring his Right to win Coal in Losodie The Defender alleadged absolvitor because he and his Authors were Infeft in the Lands of Losodie with the pertinents above the Ground and under the Ground long before the Pursuers Authors Right The Pursuer answered that the Defenders Infeftment could not furnish him Right to the Coal of Losodie because it bare no power to win Coal but being only a Feu which is a perpetual Location it reaches not to Coal not being expressed especially seing in the Tenendas all the ordinary priviledges were exprest even of Peit and Turff and Coal was omitted and because the Defenders Chartor bare expresly a reservation to the Abbot and his Successors to win Coal in Losodie for their own proper use allenarly The Defender Answered that the Right of the Land being Feu with the Pertinents did extend to Coal albeit not exprest seing it was not wholly observed according to Craigs opinion and for the Reservation it did further clear the Defenders Right that seing the Abbot reserved only power to win Coal for his own use exceptio firmaâ— regulam in non exceptis whereby the Defender had Right to the remanent of the Coal neither could the exception extend to the Pursuer but only to the Abbot and give to his Successors only to these Succeeding in the Abbacy viz. the Earl of Dumfermling The Pursuer answered that the Defenders Infeftment was Confirmed long after the Pursuers and that the Defenders Confirmation was not of the first Feu but of a second Right from the first Feuar and by the Act of Parliament anent Feus it was declared that Feus since March 1658. not confirmed by the King before 1584. were â—ull at least another Act of Parliament bare expresly that where there were divers Feus granted of the same thing the first Confirmation with the last Feu should be preferable The Lords found the Defense founded upon the Defenders Rights relevant and proven thereby and therefore found the Pursuer had only right to win Coals in Losodie for his own use and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie for his own use only and found the saids Acts of Parliament that by the late Act the Right of the ancient Possessors and kindly Tenents was reserved so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie wherein the Pursuer not being Superiour had no interest and found the Defenders Infeftment that his Authors were kindly Tenents and had a 19 year tack before the Feu Patrick and Joseph Dowglasses contra Lindsay of VVormistoun December 2. 1662. PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother as Executrix to their Father for Compt and Payment of their share of the Executry and also the said Lindsay of VVormistoun as her Cautioner found in the Testament who alleadged no Process against him as Cautioner till the Executrix her self were first discussed Not only by Compt and Sentence but also by Appryzing of her Estate Poynding of her Moveables and if nothing can be condescended upon to Poynd and Appryze at least by Registrate Horning against her Person This being but a subsidiary Action as to the Cautioner The Lords Repelled the Alleadgeance and sustained the Accompt against both superceeding all Execution against the Cautioner till the Executrix were discussed as aforesaid which is both to the advantage of the Cautioner who may concur with the Executor who is only able to make the Accompt and it is also to the advantage of the Pursuers that the Cautioner resume not the Alleadgeances omitted by the Executor and so make new Process and new Probation as oft falls out Dam Marion Clerk contra Iames Clerk of Pittencrieff Eodem die MR. Alexander Clerk his Estate being Tailzied to his Heirs Male he obliged his heirs of Line to Renunce and Resign the same in favours of his Heirs Male which Disposition he burdened with 20000. Pounds to Dam Marion Clerk his only Daughter and Heir of Line The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement whereupon she having obtained Decreet James Clerk the Heir Male Suspends on this Reason That the foresaid Clause did not personally oblige him but was only a real burden upon the Lands and Tenement which he was content should be affected therewith and offered to Assign and Dispone so much of the Tenement as would satisfie the same The Lords found the Suspender personally obliged but only in so far as the value of the Tenement might extend in respect the Clause in the Disposition mentioned the Sum to be payed which imports a personal Obligement and whereby the Suspender accepting the Disposition is obliged to do Diligence to have sold the Tenement and payed her therewith and therefore found the Letters orderly proceeded superceeding Execution of the principal sum for a year that medio tempore he might do Diligence to sell and uplift George Steuart contra Mr. James Nasmith December 6. 1662. GEorge Steuart having obtained the Gift of the Escheat of one Hume pursues a general Declarator wherein compears Mr. James Nasmith having a Declarator depending of the same Escheat and alleadged he ought to be preferred having his Gift first past the Privy Seal and had the first Citation thereupon George Steuart answered that his Gift was first past in Exchequer and the Composition payed in March before the Rebel was Denunced on Mr. James Nasmiths Horning whose Gift past in Exchequer in June only and alleadged that he being postponed through the negligence of the Keeper of the Register whom he had oft desired to give him out his Gift it must be esteemed as truely then done and as to the Citation both being now pursuing he having done full Diligence could not be postponed and produced an Instrument taken against the Keeper of the Register bearing him to have acknowledged that the Gift had been sought from him formerly The Lords having considered the Instrument and that it was after Nasmiths Gift
constant custome the entertainment of the Defuncts Families was ever a burthen on their Moveables and upon their Executry The Pursuer answered though it was ordinarly retained off the Moveables yet the Heir was also lyable seing the Defunct was oblieged to entertain his Servants and Children at least to a Term but much more when there were no Moveables or where the Defunct was Rebel and the Donatar intrometted The Defender answered that it was novum to conveen an Heir on this ground and that the Alledgiance of there being no Moveables held not here neither is it relevant that the Moveables were gifted unless it had been declared before the Defunct's Death and Possession obtained otherwayes the Relict ought to have Alimented the Family out of the Moveables which would have liberat her from the Donatar and is yet ground against the Donatars The Pursuer answered she could not retain because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables The Lords having amongst themselves considered this Process did put difference between the Aliment of the Appearant Heir and the rest of the Family As to the Heir they found that albeit he was never Infeft yet as Appearant Heir he had Right to the Mails and Duties from his Fathers Death untill his own Death though the Terms had been to run before he was born being in utero and that the Defender in so far as medling with the Rents was lyable for the Appearant Heirs Aliment but for the rest of the Familie the Lords superceeded to give answer till diligence were done against the Donatar or other Intrometters with the Moveables Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome Eodem die THomas Dumbar of Muchrome pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume wherein all the Terms being run reserving Defenses Now at the last Term it was alleaged for Hay of Arriolland no Certification contra non producta against him because he had produced a Precept of clare constat from the Pursuers Father as Heir to whom he pursues Secondly It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced and so till his Rights produced were discust and taken away there could be no Certification contra non producta The Pursuer answered to the first that the Precept of clare constat was but in obedience of a Precept out of the Chancellary As to the Ancient Rights produced if the Defender would rest thereon he needed not stand that Certification should be granted against any others not produced seing these produced are sufficient but if the Certification should be thus stopped the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time and still disputing thereon and so dispute the Reasons before the Production were closed at least the Defender ought to alledge that the Writs produced are sufficient and declare he will make use of no further in this Process The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience but found the second Alleadgance relevant hoc ordine and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer to answer thereto presently Collonel Iohn Fullertoun contra Viscount of Kingstoun Ianuary 8. 1663. COllonel Iohn Fullertoun having charged the Viscount of Kingstoun upon a Bond of borrowed Mony he suspends on these Reasons That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson and notwithstanding of the Assignation he uplifted the Sum himself at least his Brother by his order whereupon the Lady Kingstoun Daughter and Heir to the said Sir Alexander having Licence to pursue hath pursued the Collonel upon the Warrandice for Re-payment which Action being seen and returned and ready to be discust the Suspender craves Compensation thereon The Charger answered That the reason of Compensation is not relevant because it is not liquid the foresaid Sum not being confirmed by any Executor nor Sentence thereupon neither can it be instantly verified because it must abide Probation that the Collonel or his Brother by his order uplifted the Sum and there being only a licence to pursue the Debt cannot be established till a Confirmation Secondly Albeit the Compensation were relievable yet the Reason ought to be repelled because that any such Assignation was granted it was in trust to the Collonels own behove as is instructed by a missive Letter to the Charger produced It was answered for the Suspender that the Answers founded upon the missive Letter ought to be repelled because it was null neither being Holograph nor having Witnesses Secondly It is most suspect being written upon old blacked Paper The Charger answered that Letters amongst Merchands though not Holograph are sustained and ought much more among Souldiers especially between the Charger and Sir Alexander who then was his Lieutenant Collonel which is the more clear that there was never a question of it these 20 years neither was it contained in the Inventar of Sir Alexanders Papers though there were insert Papers of less moment but that it was gotten from one White for 40. or 50. Pound The Lords repelled the Compensation as not being liquid and found the Letters orderly proceeded superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger The Lords considering the matter was old and dubious before Answer they ordained Witnesses to be examined hinc inde upon all Adminicles that could be adduced for or against the Trust. Lady Otter contra Laird of Otter Eodem die THe Umquhile Laird of Otter by his Contract of Marriage having provided his Estate to his Heir Male provided 5000 Merks to his eldest Heir Female when she should be capable of Marriage and an occasion offered whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum and for payment of an Aliment to the Heir Female during the time she hath been with her Mother and in time coming till the provision be payed The Defender alleadged the Libel is no way relevant for Aliment he not being oblidged by the Contract for any Aliment but only for the Sum at such a time neither is there any Annualrent due for the Provision till the Term of payment Yet the Lords found that albeit that was no Annualrent nor provision for Aliment and that de jure Annualrent is but due ex pacto they would in this case allow an Aliment far within the Annualrent because it was all that the Daughters got for a very considerable Estate which was but a very small provision Patrick Nicoll contra Sir Alexander Hope Eodem die PAtrick Nicoll pursues a Declarator of Propertie of his Lands of Grantoun and that he had good Right thereto conform to the Bounds Lybelled It was alleadged for Sir Alexander Hope First All Parttes having interest
being for nineteen years without consent of the Patron The Defender answered that albeit both Parties were in acquirenda possessione yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat and therefore unless these Teinds have been Transmitted from the Parson of the Paroch by long Possession or Mortification they are his and the Kings Gift alone cannot take them from his but here the Parson has been in Possession by Setting the Tack produced which is sufficient as to Possession albeit it were null by Exception as it is not and the nullity thereof is only competent to the Person of the granter and not to this Pursuer The Lords found the Kings Gift and Decreet conform with Institution and Collation was not sufficient unless either the Mortification of these Teinds or the Prebenders Possession were instructed Mr. Walter Caut contra Iames Loch Eodem die MR Walter Caut having pursued Iames Loch and his Mother as Tutrix for her Interest for the Mails and Duties of some Appryzed Lands and the quantities being referred to the Tutrix Oath she refused to Depone alleadging that she had forgotten the quantities whereupon the Pursuer craved her to be holden as confest upon the Rental given in by him as if she had acknowledged the same The Lords found she could not be holden as confest being not the Party but Tutrix but they found that she might be forced to Depone by Horning and Caption as other Witnesses Alexander Monteith contra Anderson Iune 28. 1665. THere being mutual Reductions betwixt Monteith and Anderson the former having Right to an Appryzing led in Anno 1619. and the other Mr. Iohn Anderson having adjudged in Anno 1656. Mr. Iohn Anderson insisted on this Reason that Monteiths Apprizing proceeded was on a Sum of 5000. Merks due by Iames Nisbet the common debitor to Gilbert Gourlay after that Iames was Rebel at Mr. Iohn Andersons authors Instance after which no Bond granted could prejudge the other Creditor having used Diligence before but the Bond is null by the Act of Parliament 1621. against Bankrupts It was answered for Monteith that that Act was only against Fraudulent Dispositions between confident Persons without Cause onerousâ— but here a Bond of borrowed Money was onerous and no man was thereby hindered to borrow Money Anderson answered that the Narrative of the Rebells Bond bearing borrowed Money could not instruct against a Creditor using prior Diligence This the Lords Repelled Anderson insisted upon this Reason that Gourleys Bond was granted by Iames Nisbet Iames and William Arnolds all Conjunct Principals without a Clause of Relief and this Bond was assigned by Gourley with this express Provision that no Execution should proceed thereupon or upon the Bond or Inhibition against the Arnolds and so if the Assigney had been pursuing Iames Nisbit for all he might have answered that the Assigney had accepted his Assignation with this provision that Iames Nisbet could not use Execution against the other two Co-principals and therefore he being excluded from his Relief could be only lyable for his third part for he would not have subscribed the Bond but upon consideration of his Relief Monteith answered that all the three principals being bound conjunctly and severally the Creditor might renounce all Execution against two of them and yet crave the whole from the third and there was no more done in this case and albeit there be no Clause of mutual relief exprest yet hoc in est de natura rei So that albeit Nisbet by vertue of the Assignation thought it had been transferred to him could not have pursued the two Arnots yet by the obliegement of mutual Relief implyed he might not as Assigney but as coreus debendi Anderson answered that if the Clause had born only a Provision that no execution should pass upon the Assignation it might have been consistant but it bears that no Execution should pass upon the Assignation or Bond. The Lords found that the Obliegement of mutual Relief was implyed where parties were bound conjunctly and severally albeit not exprest and that the Provision related only to the Bond quantum ad creditorum and did not restrict the implyed obliegement of the Co-principal and therefore repelled this Reason also Robert Keill contra Iohn Seaton Iune 28. 1665. GEorge Seaton as principal and the said Iohn Seaton his Cautioner having granted Bond to Robert Keill and being Charged thereupon both did suspend and having alleadged payment they succumbed and were Decerned Iohn Suspends again and raises Reduction upon minority and lesion The Charger answered First That this Reason was competent and omitted in the former Decreet 2ly That proponing payment did homologat the Debt as if an Heir proponed payment he would not be admitted fo renounce thereafter or to deny the passive Title The Suspender answered that the former Process being in a Suspension nothing was competent but what was instantly verified and so minority and laesion was not competent The Charger answered that the Decreet of Registration was turned in a Libel as being Registrat at the Assigneys Instance not having Intimat during the Cedents Life and at that time the Suspender had raised his Reduction and so it was competent The Suspender answered that he was not oblieged to insist in his Reduction and that the reasons thereof were not proper even in an ordinary Action but only by a Reduction It was furder alleadged that competent and omitted took no place in Suspensions The Lords had no regard to the last alleadgence but repelled the alleadgence upon homologation and upon competent and omitted in respect that minority and laesion is neither competent by way of Suspension or exception but by way of Action of Reduction wherein the Suspender was not oblieged to insist Iames Pitcairn contra Isobel Edgar Iune 28. 1665. UMquhil David Edgar by his Contract of Marriage provided 4000. merks to be payed by him and his Heir of the first Marriage which failling any other his Heirs to the Bairns of the second Marriage The portion of the Daughters payable at their age of 18. and the Sons at 21. with five merks yearly of annualrent after his death for the Childrens subsistence Isobel one of the Children having married after her Fathers death Iames Pitcairn her Husbands Creditor pursues for the sum as belonging to the Husband jure mariti It was answered that the sum was Heretable bearing Annualrent and the Term of payment of the Annualrent was come before the marriage and therefore it did not belong to the Husband jure mariti It was answered that it was not properly an Annualrent but an aliment of five percent and that the Term of payment of the Annualrent was after the Act of Parliament 1641. declaring such Bonds moveable and albeit the Fisk and Relict be there excluded yet the jus mariti is not but is only added by the Act 1661. The Lords found that seing this Provision bear Annualrent whether more or less and that the marriage was
answered that Inhibitions are personal Prohibitions Restraining the Person Inhibit and the Leiges to Alienat Buy or Sell any Lands in prejudice of the User of the Inhibition and until he be satisfied of the Ground thereof Which Prohibition respecteth the Person Inhibit directly and the Lands but indirectly as they belong to him so that there is no difference whether they belonged to him before or after for hoc ipso that they are his they fall under the restraint and the alienation thereof is to the prejudice of the User of the Inhibition because if they were not Sold they might Appryze the same so that albeit he be not in worse case then he was the time of the Inhibition yet he is in worse case then he would be if the Land had not been sold And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom that infers not but they might and that they would be effectual to Lands thereafter acquired in these shires neither is there any ground to except the Renuncing of Wodsets which are Alienations of the Wodset Lands but the Redeemer before he declare or deliver the Money and take Renunciation he ought to search the Registers and to call these persons who have used Inhibitions for their Interests The Lords found that Inhibitions reached to Lands acquired after the Inhibition but were not clear that Inhibition hindred Renunciations of Wodsets but superceeded to give answer to that Point till the first of June Laird of Dury contra Anna Gibson Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters for twenty thousand Merks of portion a Piece and in case of Decease of any of them her Portion to belong to his Heir-male but upon the Margent there is added that the Portion of the Deceasing should accresce to the Survivers This Dury Brother and Heir-male pursues Reduction and Improbation of this Bond in so far as concerns the Marginal addition upon these grounds that the samine was not Subscribed before the Witnesses insert in the Bond nor insert at that time And that it is written by another Hand then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond and that the Bond bears that the Date and Witnesses are insert by Dury himself yet it does not bear that he insert the Marginal addition which is of greater importance It was answered that Bonds being Subscribed before Witnessâ—s their Testimony reaches not only to the Subscription on the foot but to the Subscription of joyning the Sheets and whole Marginal additions which are as valide as any part of the body unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed and albeit the Marginal addition be of another Hand it is offered to be proven that it is the Hand-writing of Dury himself who insert the Date and Witnesses which is more Solemn then any other writer especially seing the writer was not present or witness but only drew the draught of the Bond and albeit he mentions not the inserting of the Marginal addition but only the inserting of Date and VVitnesses that has been because of the ordinar Stile of Bonds whereof the Date and VVitnesses are filled in by another Hand not being ordinar for these to write Marginal additions and as for the importance or contrariety of the Margent to the Body that is most ordinar especially where the body is but a draught drawen by another Hand who has erred in his intention in the Substitution it was answered for the Pursuer that albeit the Marginal addition should be proven to be Holograph yet unless it were proven to have been truely written and subscribed at the Date of the Bond. It cannot prove that it is of the same Date or of any Date before the Defunct was on Death-bed and so it is null and cannot prejudge the Pursuer as Heir especially seing the Defunct having then no Sons might probably adject this in favours of his Daughters contrair his former Intention which if it should take effect would ruine the Heir-male The Lords having taken the Deposition of the Witnesses insert and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no and that it did appear by inspection that the Marginal addition was by another Hand then that that wrote the body and that it was not mentioned at the conclusion where the Defunct exprest that he himself was Filler up of the Date and Witnesses and nothing was adduced to astruct that it was of a true Date before his taking Bed Vpon all these considerations joyntly the Lords found that the Marginal addition was not of the Date of the Bond and that having no Date of it self it was not instructed to have been done before the Defunct was on Death-bed and so was null as to the Heir but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition but only that all joyntly was sufficient the matter being also accorded amongst the Parties Antrobus contra William Anderson Provost of Glasgow Iune 13. 1667. WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow the Messenger having therewith taken Herbertson in his own House and having required William Anderson present Provost to Concur and put him in Prison and he refusing pursues now the Provost for payment of the Debt The Defender alleadged first that the Lybel was not relevant because it did not subsume that the Rebel was showen to the Defender 2ly The Defender was required at an unlawful time being betwixt eleven and twelve at night 3ly The Defender offered the concourse of the Town Officers 4ly The Army being come to Glasgow that night the Provost was taken up at the time he was required with the ordering of their Quarters which being a publick Service of greater Importance he offering of the Officers was sufficient 5ly This subsidiary Action being but for the Pursuers damnage he can pretend none because the Rebel was Bankrupt and insolvent long before and he was Incarcerat within some few dayes where he remained a long time during which the Pursuer might have Arrested him and the Defender yet offers to put him in Prison in as good case as he then was The Pursuer answered that his Lybel was most Relevant because the Letters being directed to Provost and Bailies of Burghs and if they be required albeit the Rebel be not in their sight they must go with the User thereof to any place within their Jurisdiction which they must do in their own persons and it will not be sufficient to send their Officers and as to the time of requiring any time that men do use to go about their Affairs is sufficient and the Defender was required between
time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses Deponed
Father being Infeft in an Annualrent effeirand to the principal sum due to him by the Lord Balcombie they did thereafter obtain Decreet for the principal sum and thereupon Appryzed the Property wherein they stand Infeft holden of the King in which Appryzing there is a Reservation exprest but prejudice of the Infeftment of Annualrent and now being desirous to be Infeft in the Annualrent as Heirs to their Father and that themselves were Superiours by the Infeftment on the Appryzing and conceived it not proper for them to Infeft themselves did therefore desire the Lords to grant VVarrand to direct Precepts forth of the Chancellary for the King to Infeft them The Lords having considered the case and argued the matter amongst themselves whether it were more secure and legal that they should be Infeft by the King upon their Supplication or that they as having Right to the Property by their Infeftment on the Appryzing should grant Precepts for Infefting themselves in the Annualrent as Heirs to the Annualrenter or whether their Infeftment in the Superiority would consolidat the Annualrent without Infeftment The difficulty against the Kings Infefting of them was that the King Infefts none but these that holds immediatly of Him or upon the disobedience of the immediat Superiour supplendo vices To which it was answered that the King may supply the place of the immediat Superiour either when he will not or cannot Infeft his Vassal and the Petitioners conceive that in this case they cannot and both being extraordinary Remeeds the Lords may do the same and have done it in former Cases The difficulty as to Infefting themselves was that the Right of Property and jus nobilius did extinguish the Right of Annualrent and yet the Right of Property may be Reduced and then they would be necessitat to Defend themselves by the Annualrent and therefore it is not an absolute Extinction but in tali casu and therefore they have reserved the same in the Appryzing The difficulty as to the third way was that if the Right of Superiority should be Reduced they should be without Infeftment at all The Lords found that they might either Infeft themselves by their own Precept or might get Precepts from the King as was desired periculo petentium or they might make use of both together Mr. Alexander Seaton contra George Seaton of Menzies December 2. 1668. MR. Alexander Seaton Heir and Executor to Iames Seaton his Brother pursues George Seaton as Heir to his Father Iames Seaton for making his Fathers Tutor Accompts as being Tutor to the Pursuers Brother and for instructing that he was Tutor produced several Writs Subscribed by him as Tutor Testamentar The Defender alleadged First That the condescendence was not relevant to Instruct the Defenders Father Tutor unless the Testament whereby he was nominat were produced otherwayes his acknowledgement can only make him but Pro-tutor and so not lyable for all omissions and no sooner lyable then after the date of these Writs 2dly Albeit the Defenders Father had been Tutor yet by the Writs produced it is evident that he was but one of more Tutors and therefore no Process against him till they be all called The Pursuer answered that the acknowledgement to have been Tutor was sufficient against him who Subscribed the same and that there was no necessity to call all the rest seing the whole Tutors were lyable in solidum and as ordinarly parties bound conjunctly and severally may be conveened conjunctly or severally so may Tutors who as others may except upon the performance of other Tutors as well as their own neither is the case of Tutors alike with Cautioners who are not lyable in solidum for Tutors as they are lyable conjunctly and severally for the whole Office so are they conveenable conjunctly and severally for the same The Lords Repelled the first alleadgance and found the Writs produced instructed the Defenders Father Tutor and not only Pro-tutor for if the Testament had been produced shewing other Tutors so that the Acknowledger could not have been tutor testamentar it would have made him but Pro-Tutor but that not being it instructed him Tutor As to the other point in respect the Tutor was dead and his Heir only but conveened who could not know the Administration the Lords would not sustain Process till they were also called Agnes Goodlat contra George Nairn December 8. 1668. AGnes Goodlat as representing the umquhil Wife of George Nairn pursues for the third of the Moveables belonging to him the time of his Wifes Decease It was alleadged for the Husband that before Division the Heirship moveable behoved to be drawn It was answered that there could be no Heirship of a man that was living It was answered that albeit there was no actual Heirship yet the best of every kind was Heirship Moveable wherein the Wife had no Interest Which the Lords sustained and Ordained the Heirship to be first drawn Earl of Argile contra George Stirling December 9. 1668. THe Earl of Argile having pursued George Stirling to Remove he alleadged Absolvitor because he stood Infeft on an Appryzing It was Replyed that the Appryzing and Infeftment could not defend him because the Person from whom he Appryzed being a Vassal of the Earl of Argiles and his Right not being Confirmed by the King the same could not exclude the Pursuer the Kings Donator and the Appryzer could be in no better case then his Author The Defender Duplyed that he was in better case because he being Infeft by the King before the Pursuers Gift when the King had both Superiority and Property it is equivalent to him as if the King had Confirmed his Authors Right It was answered that Infeftments upon Appryzings that pass in Course and are not noticed in Exchequer cannot prejudge the King and take away the benefit of the Gift which must pass by a several Signature Which the Lords found Relevant and Repelled the Defense and Duply and Decerned Scot contra Aitoun December 11. 1668. MR. Iames Aitoun having Disponed the Lands of Grainge with the burden of 12000. Merks to be payed to his Daughters Iohn Scot having Married one of the Daughters in their Contract of Marriage the Daughter Anna Aitoun Assigns her part of the 12000. Merks to her future Spouse and in the same Contract he acknowledgeth the Receipt of the Money from Mr. Robert Aitoun the Debitor and therefore with consent of the said Anna Discharges the said Mr. Robert by a Contract of the same Date betwixt Iohn Scot and Mr. Robert relating the Contract of Marriage but acknowledges there was no Sums payed for the Discharge contained in the said Contract but that the Security contained in this Contract was granted therefore and therefore he gives a new Heretable Security to Iohn Scot the Marriage Dissolves within year and day by the Death of the said Anna without Children she in her Testament names the said Iohn Scot her Husband her Executor and universal Legator George Scot as
no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
modo by Dissolution The Pursuer answered First That albeit the King or his Officers might quarrel his Right as not proceeding upon Dissolution or any other having their Right upon Dissolution yet the Defender cannot especially seing he hath Homologat the Pursuers Right his Predecessors to whom he is Heir having taken Infeftment thereupon likeas the Pursuer has satisfyed the Kings Interest by giving Bond to the Kings Advocat to hold the Lands Waird of the King in the same way as the Defender would therefore the Advocat hath declared he will not concern himself 2dly the Pursuer having obtained a new Right of the King since the Act of Parliament 1661. the same must be valide to him as to these Vassals who have or shall consent because the exception of the Act expresly bears that such a consent is equivalent as if the Vassal had Resigned in the Kings Hands in favour and for new Infeftment to the interposed Superior and had then taken a subaltern Right of him against which there can be no pretence so that by a Right in the exception it cannot be meaned a perfect Right proceeding upon Dissolution because that would be valide without the Vassals consent but that the Vassals consent being equivalent to a Resignation makes the Right valide without Dissolution Which the Lords found Relevant the Duke proving a sufficient consent but it was not Decided whether Major Ballantines taking Infeftment would import a sufficient consent conform to the exception of the Act so that he might not thereafter return to the King Iack contra Iack Iuly 15. 1669. PAtrick Iack having only three Daughters Margaret his eldest Daughter Married Iohn Dowglas and there is a Contract betwixt Iohn Dowglas and the Tutors of the other two Daughters dividing there Fathers Inheritance in three parts and mutally Disponing the same with Procuratory and Precept and there being a Salmond Fishing holding Waird of the King which fell to Margarets share Iohn Dowglas takes Infeftment upon the Tutors Precept Disponing for the other two that Fishing after his Death the said Margaret takes a Gift of Recognition of the said Salmond Fishing as falling by the Infeftment taken by Iohn Dowglas without consent of the Superior and thereupon pursues Declarator Katharin Iack and Robertson her Spouse and the other Sister pursue a Reduction of the Contract of Division as done by their Tutors in their Minority to their Lesion and in answer to the Recognition alleadged First That this Recognition occurred in the time of the English when Recognitions were excluded and such Infeftments by the Law then in use were allowed 2dly The Infeftment here granted proceeded only upon the Disposition of their Tutors whose acts except in what is proper to the Administration of their Office is void It was answered as to the first that they opponed the Decision in the case of Sir George Kinaired against the Vassals of the Master of Gray by which it was found that Infeftments taken of Waird-lands without the Superiors consent even during the Usurpation inferred Recognition and to the second that the Division among the Daughters was an act of Administration that the Daughters might have been compelled to do It was answered that there is no such Decision produced and that in the case of the Vassals of Gray they did continue in Possession several years after the Kings Restitution and did not take Confirmations but here the said Margaret one of the Sisters who should have taken Confirmation before she had continued Possession cannot have benefit by her own fault and make use of a Gift of Recognition in her own Person proceeding upon her own and her Husbands fault neither can the Division be a lawful act of Administration of the Tutors in so far as they granted them Precepts of Seising to be holden of their Pupil which no Law could have compelled them to do but only Procuratories of Resignation likeas it was Iohn Dowglas fault not to make use of the Procuratory but of the Prccept The Lords found no Recognition incurred but because the Parties might have been troubled if any other had taken the Gift they ordained the other two Sisters to pay their part of the expences of the Gift Mr. Archibald Dennistoun contra Semple of Fulwood Iuly 16 1669. THe Lairds of Fulwood elder and younger and Dennistoun being appointed Overseers by Culgrain to his Daughters the eldest Daughter being Married to Mr. Archibald Dennistouns Son there is a Contract betwixt Mr. Archibald and the three Overseers taking burden for the Daughters by which the Estate of Culgrain and Mr. Archibalds Estate are both settled in the Person of his Son and the Overseers are obliged to cause the Minors and their Curators become obliged to relieve Mr. Archibald of 17000. Merks Mr. Archibald Charges Fulwood upon the Contract who Suspends alleadging that the Clause can only import that he is lyable for his own part but not in solidum seing the Clause bears not the Overseers to be bound conjunctly and severally It was answered that the obligement is not for payment of a Sum which is divisible but for doing a Fact which is indivisible viz. the Minors being become bound to relieve which is all one as if the Overseers had been obliged to cause the Minors Subscribe a Bond of releif which could not divide but would have obliged every one of them in solidum It was answered that the result of the obligation being releif of Sums which are divisible the obligation at least the Damnadge and Interest succeeding in place thereof ought to be devisible for the obligation being factum alienum imprestable to the Overseer and the third Overseers that refuses to concur being the Chargers own Brother there is no reason that the Overseers who had no Office or obligement but were only Overseers which is not nomen juris should be lyable for the Chargers own Brother his third part thereof The Lords found them only lyable pro rata Barclay contra Barclay Iuly 20. 1669. THe Laird of Towy having only one Daughter Elizabeth Barclay and his Lands being provided to Heirs Male Dispones his Estate to his Daughter In which Disposition there being not only a Procuratory of Resignation but a Prcept of Seising the said Elizabeth was Infeft upon the Precept and being an Infant her Friends thinking it might infer Recognition took a Gift of the Recognition and now pursues Declarator thereon against the Tutor of Towy Heir Male and Captain Barclay as pretending Right by Disposition to the Estate It was alleadged for the Defenders Absolvitor because the Disposition granted by umquhile Towy to the Pursuer his Daughter was granted on Death-bed at the least it was retained by the Defunct and never delivered till he was on Death-bed and thereby it is null and cannot infer Recognition because the Law upon just consideration that Parties are presumed to be weak in their Minds and easily wrought upon after contracting of the Disease of which they Died has
Iohn Eleis contra Inglishtoun Eodem die CRichtoun of Crawfordstoun having only one Daughter Disponed his Estate to Iohn Brown of Inglishstoun in contemplation of the Marriage betwixt him and Crawfordstouns Daughter and to the Heirs-male of the Marriage which failzying to certain other Heirs Substitute bearing a power to Burden the Estate with 5000. Merks to whom he pleased and containing a Clause that the Disposition should be valide though not Delivered in his Lifetime and after Inglistouns Marriage Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun and the Heirs of the Marriage which failzying After which words there follows a blank of a Line and a half and the Sum is payable at the first Term after Crawfordstouns Death the intent of which Bonds seems to have been that thereupon Apprizing might proceed to Denude the Heirs of Line and to compel the Superior 〈◊〉 Receive Inglistoun Thereafter Crawfordstoun made a second Tailzy wherein Inglistouns Son with his Daughter being then Born is Feear and several Members of the Tailzy altered and after that he made a third wherein his Daughter Inglistouns Wife is Feear and the Substitutions much like the former After his Death these Papers being Exhibit at the Instance of two of his Daughters Heirs of Line Married to Mr. Iohn Eleis and Alexander Tran upon a Process ad deliberandum and being craved up again from the Clerks by the Tutor of Inglistouns Son It was alleadged for the Heirs of Line that the saids Writs could not be Delivered up because they not having been Delivered by the Defunct in his leige poâ—stie could not prejudge his Heirs of Line and albeit his first Disposition contained a dispensation for not Delivery which ordinarly is accounted sufficient yet where it appears the Defunct altered his purpose both by the posterior Dispositions of a different Tenor and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual and there is no pretence for Delivering the Bond and the two other Dispositions seing they want that Clause It was answerd that the Dispensation with Delivery is in all cases equiparat with the Delivery it self and that the remanent Writs ought also to be Delivered though they bear not that Clause because the Heirs of Line being absolutely excluded by the first Disposition they have no interest to quarrel the other Dispositions and albeit it the posterior Dispositions were to different effects the want of Dispensation therein might make them ineffectual yet where they are but qualifications of the first Tailzy they are accessory thereto and must be Delivered therewith seing the Defunct so long as he keeped the Writ in his own Hand might still alter the same at his pleasure It was answered that the posterior Dispositions wanted the Clause reserving power to the Defunct to leave to whom he pleased the 5000. Merks and it is like he hath left it to his other Daughters and the Bond may be made use of to overturn his whole intent and alter the Tailzy The Lords found that seing the first Disposition contained a Dispensation with Delivery and the rest being accessory thereto and only altering in somethings the Tailzy but still to the first Heir of Tailzy being the Son of Inglistouns Marriage they ordained them all to be Delivered up and the Bond also but with this Declaration that the Provision anent the 5000. Merks in the first Disposition should be holden as repeared in the rest that the Heirs of Line might be in no worse Case then by the first and that the Bond should only be made use of according to the Substitutions and Clauses of the Tailzies Crawford contra Anderson Iuly 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow sometime thereafter William grants Back-bond Declaring the Disposition was upon Trust to the behove of Fleemings Creditors Young being one of the Creditors uses Inhibition and Apprizing against Fleeming and is thereupon publickly Infeft after which William Anderson makes payment to the other of the Creditors the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands Anderson excepts upon his prior Infeftment from Fleeming the common Author upon the said Disposition Crawford replys upon the Back-bond that the said Infeftment is on Trust to the behove of Fleeming Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him and next to the behove of Fleemings Creditors and condescends and instructs that he has made payment to several of these Creditors so that payment made by him bona fide must give him Right to the Trust pro tanto and any Inhibition or Infeftment at Youngs Instance was only against Fleeming and not against Anderson against whom there was never any Action It was answered that the Trust being for payment of Fleemings Creditors cannot be interpret at the option of Anderson which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors but it must be understood to pay the Creditors legitimo modo and not to make voluntar payment to these who had done no Diligence and prefer them to these who had done Diligence and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming yet Anderson who was Intrusted for Fleeming might and ought to have known the same by searching of the Registers appointed for publication of Rights and if he had neglected the same Sibi imputet for he being Trusty for Fleeming could no more prefer Fleemings Creditors then Fleeming himself could do The Lords Repelled the Defense and Duply and found that voluntary payment made by Anderson to Fleemings Creditors after the Inhibition or publick Infeftment of other Creditors did not give him any Right by his Infeftment in Trust to exclude the more timeous Diligence of the other Creditors Street contra Masson and Lord Tarphichen Iuly 27. 1669. IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands publickly holden of the Superior and being a Merchant there was a correspondence betwixt him and Mr. Street and other London Merchants whereupon he gave them Bond mentioning to be for former Accompts and Provisions betwixt them and thereupon followed an Infeftment of Annualrent The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son as being posterior to his Debt and granted by a Father in defraud thereof The London Merchants raise also a Declarator that the Infeftment granted by Masson to his Son then an Infant ought to be affected with their Debt in the same condition as it were yet standing in the Fathers Person or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son the Father being then in tract of Correspondence and Traffick with these Merchants who
a real Right nor prevent the Diligence of other Creditors 2dly If they had a good interest to Reduce and thereupon to Apprize no offer could take away that interest but payment The Lords found the Creditors had sufficient Interest upon their Personal Bonds to insist upon the Reduction ex capite lecti but they found that a real Security given to Cowpers Creditors equivalent to an Apprizing and Infeftment was sufficient to exclude their Interest Monteith of Carâ—ubber contra Margaret Boyd December 2. 1669 UMquhil Mr. Robert Boyd of Kips dying Infeft in the Lands of Kips and Gourmyre and in a Miln and having left two Daughters Heirs portioners the younger having Married Monteith of Carrubber being dead her Son and Heir raised a Brief of Division against the eldest Sister whereupon Division was made in this manner viz. The Rent of the Miln being Rated at a 100. pound the Chalder being more than the Rent of the Land the whole Land was set on the one part and the Miln on the other and because the Mansion-House belonged to the eldest Sister the Land was Adjudged to her and the Miln Adjudged to the other and the superplus of the Rent of the Miln allowed in satisfaction of the youngest Sisters Interest in the House Carrubber raises Reduction of this Division upon these Reasons First That the Lands ought to have been divided in two shares and the House likewise having convenient Rooms and Lodgings for both Families in which they have Dwelt these 20. years and not to have Adjudged the Miln only to him stating the Victual being only Meal at a 100. pound the Chalder far above the just value and stating the Miln-Rent equivalent to the Land-Rent which is subject to many more Contingencies and Expenses in upholding the Miln and difficulties in recovering the Rent and in the common estimation is not accounted equivalent to Land Rent so that he is enormly les'd and offered a 1000 merks to Margaret the eldest Daughter to exchange shares albeit the Rent of either share be but about three Chalders of Victual The Defender answered that the Reasons of Reduction were no way Relevant because all Divisions ought to proceed as is most convenient for either Party and where least is left undividedâ— and the Division it self cannot have a precise Rule but is in arbitrio of the Inquest who were knowing Gentlemen of the Neighbourhead and upon Oath so that unless the Lesion were ultra dimidium justi valoris it cannot be recalled seing an Inquest has the irrecoverable determination of Life and Death which is of far greater moment than this and this Division proceeded upon Carrubbers own Process and the Inquest was called by himself And albeit it be true that if the Division could have been made by giving both a share of the Lands and a share of the Milns if there had been more Milns it might have been more equal but here if the Land had been Divided the Miln behoved to have remained for ever Common and so the Division not be compleat Likeas the Miln lies at a distance from the Land and near to Carrubbers own Land and is not a casual Rent arising from free Multures but has the whole Barrony of Torphichen astricted by Infeftment and the Defender is willing to give 2500. merks for each Chalder of the Miln Rent which is the ordinary rate of Land Rent and the reason why there was no Cavel or Lot was because the eldest Sister falling the Mansion House by Law she behoved to have the Land therewith The Lords Sustained the Reasons and Ordained a new Commission for a new Division here the Lords would not consider the Points severally whether the Mansion House ought to have been Adjudged to the eldest Sister and a Recompence to the second Or whether such a House being no Tower nor Fortalice but which would be comprehended as a Pertinent of the Land gave no preference so that Lots ought to have been cast upon the Division Or whether the House could be divided per contignaliones Or whether the Miln though it had been truly Rated could have been put to answer the whole Land Or that the Land behoved to be divided and the Miln remain common but only generally the Lords gave a new Commission for a new Division Weavers of Pearth contra Weavers at the Bridge-end of Pearth December 4. 1669. THE Weavers of Pearth having pursued the Weavers at the Bridge-end upon the 154. Act Par. 1592. prohibiting Trads-men in the Suburbs of Burghs to exercise their Trades whereof mention is made Iuly 21. 1669. The Defenders were then assoilzied Now the Pursuers further alleadge whereas it was then represented that that Act had never taken effect but was in desuetude They now produce a Decreet of the Lords at the instance of the Weavers of Edinburgh against the Weavers of the Suburbs compearing Decerning them to desist and cease from bringing any of their Work within the Liberties of Edinburgh and from coming within the same to receive Work and that upon the same Act of Parliament which cleares that the same is not in desuetude and it is founded upon a most just and necessar Ground viz. That Trads-men within Burgh pay Stent for their Trade which were impossible for them to do if the same Trads-men were permitted in the Suburbs who might work cheaper then they not being lyable to Stent The Lords Explained their former Interlocutor and declared conform to the foresaid Decreet of the Town of Edinburgh viz. That Weavers in Suburbs might serve any in the Landward but might not come within the Liberties of the Burgh for taking up the Work of the Burgesses in prejudice of the Free-men who were Free-men of the Burgh Iohn Iaffray contra Alexander Iaffray and Doctor Iaffray his Son Eodem die JOhn Iaffray late Provost of Aberdeen pursues a Declarator of the Escheat and Liferent of Alexander Iaffray his Brother Compearance is made for Doctor Iaffray Son to the Rebel who produced a prior Gift with general and special Declarator and alleadges no Declarator at the Pursuers instance upon this posterior Gift because the Right is fully Established in his Person by the prior Gift and Declarators The Pursuer answered First That the Doctors Gift is simulat to the Rebels behove and so accresced to the Pursuer which appears from these Evidences First That the Doctor is the Rebels own Son 2dly That it is retenta possessione the Doctor having suffered his Father to possess for many years 3dly It was offered to be proven per membra curiae of the Exchequer that the Gift was purchased by the Rebels Means and Moyen and severally it was offered to be proven by the Doctors and his Fathers Oath conjunctim that he had given a Back-bond declaring the Gift to be to his Fathers behove It was answered for the Doctor to the first that the Grounds of Simulation were no way Relevant for albeit he was the Rebels Son yet he had means of
a verbal Promise not in Writ it can be no more effectual than if it had been a verbal Tack which is only effectual for a year and thereafter the Setter may resile It was answered that here there is a Tack by the Husband for several years and the Wifes promise never to quarrel it needs no Solemnity in Writ but is valid as pactum de non petendo or de non repugnando The Lords found the Wifes Promise effectual and that she might not resile during the years of the Tack Lady Lucia Hamiltoun contra The Lands of Dunlap and Pitcon and the Creditors of Hay of Montcastle Ianuary 15. 1670. LAdy Lucia Hamiltoun being assigned to a Bond of 4400. merks grantted by George Hay of Montcastle to the Earl of Abercorn she Inhibits the said George and Denunces and Apprizes his Lands of Birklands and others and thereupon pursues Reduction against Dunlap and Pitcon and certain other Creditors in favours of whom there is a Disposition granted of the saids Lands by George Hay and insâ—sts on this Reason that albeit the Disposition bear to be for sums of Money and Causes onerous yet by a Clause therein it is expresly declared that it is granted to Dunlap and Pitcon for satisfying of the Debts due to them and to the effect they may sell the Lands for payment and satisfaction of the said Iohn Hay his other Creditors under-written for the sums after-specified after which words there was left a large blank which by ocular inspection is now filled up with another hand than he who Wrote the Body of the Disposition and which Article so filled up is in the same case as if it had been set upon the Margent and subscribed or as if it had been in a several Writ wanting Witnesses and cannot be holden to be of the same date of the Disposition but must be presumed to have been filled up after the Pursuers Inhibition and after she had Denunced and Apprized the Lands and therefore as to these Creditors so filled up their Rights which are granted by Dunlap and Pitâ—on the intrusted Persons long after the Pursuers Inhibition and Appryzing the same ought to be Reduced It was alleadged for the Creditors Defenders that the reason as it is qualified is no ways Relevant against them First Because the Disposition granted to Dunlap and Pitcon being of the whole Lands and they Infest accordingly being long before the Pursuers Inhibition and Appryzing and the said Disposition and Infeftment being to the Creditors behove albeit their Subaltern Rights from Dunlap and Pitcon be posterior nihil referi And whereas it is alleadged that their Names and Sums are filled up in the blank after the Inhibition and Appryzing with another hand and so must be presumed of another date It is answered that the Subscription at the Foot and Body of a Writ did necessarly infer that the whole blanks were then filled up unless the contrary be proven neither uses the Names of fillers up of blanks to be exprest and it cannot be presumed that any man in prudence would subscribe a blank Writ till the blanks were first filled up 2dly Though it could be proven that the blank was filled up after the Inhibition yet the general Terms of the Clause being insert a principio with the same hand viz. for satisfaction of the said George his Creditors it is sufficient although the particulars were insert after 3dly It is offered to be proven if need beis by the Oaths of Dunlap Pitcon and the Witnesses insert that before the subscribing of this Disposition thir Creditors filled up were particularly commâ—ned on to be filled up and no other The Pursuer answered that there being here pregnant Evidences of Fraud by interposing intrusted persons and preferring of some Creditors to others by the Debitor who was Insolvent and had no more Estate in that case the filling up of the blanks must be presumed fraudulent and posterior unless the Creditors prove it was trulyâ— filled up before the Inhibition otherwise it opens a Door to all Insolvent Persons in this manner to exclude any of their Creditors from payment and to have such Clauses ambulatory at their pleasure Neither doth the general part of the Clause suffice unless it had been in favours of the Disponers Creditors generally or indefinitly which would have comprehended the Pursuer but it being only of the Creditors under-written if these were not under-written till after the Inhibition they have no place And as for any verbal Communing or Agreement it cannot be effectual until it be redacted into Write which was not till after the Inhibition The Lords found that the blank being filled up with another hand and so substantial a Clause and the Writer not being exprest at the foot that it was to be presumed to be posterior to the Inhibition unless the Creditors prove by the Witnesses insert or others above exception that it was truly insert before the Inhibition and Apprizing wherein they would not admit the Oaths of the Persons intrusted and they had no respect to the alleadgeance that it was Communed and Agreed upon before the Subscription Doctor Balfour and his Spouse contra Mr. William Wood. Ianuary 18. 1670. UMquhil Mr. Iames Wood having been Tutor to his Wifes Daughter she being now Married to Doctor Balfour they pursue Mr. William Wood as Representing his Father for a Tutor accompt in which Accompt the Auditors reported these Points 1. The Pursuer insisted for the whole sums bearing Annualrent whereof no part belongs to the Wife as Relict she being excluded by the Act of Parliament The Defender answered that he opponed the Testament and Confirmation unreduced whereby there is a Tripartite Division of the whole Sums and the Relict has one Third which belonged to the Defunct Tutor her Husband jure mariti The Lords Repelled this alleadgeance and found that the Errour of the Confirmation was Corrigible without Reduction 2. The Defender alleadged that he was not comptable for the Annualrent of one of the Sums acclaimed because by the Bond it was provided in Liferent to the Relict whereto his Father had right jure mariti It was answered that the Tutor had given several Discharges of that Annualrent as Tutor and not as Husband and so had Homologat and acknowledged the Pupils right to the Annualrent It was answered that the Discharge was so granted by errour and mistake falsa designatio non obest ubi constat dere and offered to prove by the Bond that the Wife was Liferenter Which the Lords found Relevant Andrew Hadden contra Nicol Campbel Ianuary 25. 1670. ANdrew Hadden having Charged Nicol Campbel upon a Bond Subscribed by him as Cautioner for Samuel Meikle Gold-smith Nicol Campbel Suspends and raises Reduction on this Ground that he being an illiterate man and could not subscribe he was induced to be Cautioner for Samuel Meikle but on these express Terms that he should only be Cautioner for 1200. merks and accordingly he gave order
a perpetual Friendship In Contemplation of which Marriage the said Iames Raith and Mr. Iames Raith his Son were obliged to pay 10000. pounds of portion to Wolmet himself and to lend another Sum for Redeeming of a Wodset upon the Estate which being done Wolmet was obliged to Infeft his Son and to provide eight hundreth merks of Joynture to his good-Good-daughter Raiths Eldest Daughter Dies and the said Iames Edmistoun Wolmets Eldest Son Marries Raiths second Daughter but there was no Contract or consent of her Parents and they having lived seven years together James Died without Children and Raiths third Daughter is Married to John Wauchop Niddries Son and Raiths Estate provided to her whereupon they to liberate Raiths Heirs and Estate of the 10000. pounds contained in the Contract raised Declarator that the minute was null and void in two Grounds First Because there was no Marriage following by consent of the Parents conform to the Minute 2dly Because Raiths obligement to pay the Tocher was to Wolmet himself and for his mutual obligement of Infefting his Son and providing a Joynture which neither was nor can be done Major Bigger now standing in the full Right of Wolmets Estate and no Person to Represent Wolmet The Defenders alleadged absolvitor from the first Ground because there was a Marriage conform to the Minute and albeit Raith did not consent yet being obliged he had no just Ground to disassent And to the second Ground seing there was no Clause irritant in the Minute albeit the obligements therein were mutual Causes each of other it might be Declared that neither Party should be obliged to fulfil till the other fulfilled their part but could not annul the Minute The Lords found that seing Wolmet was in no capacity to perform his part that the Heirs and Estate of Raith were free of their part providing that the Pursuer who is Assigney to the Liferent Right of the said Iames Edmonstoun his Wife should Discharge the said Liferent and declare that it should never burden Wolmets Heirs or Estate Beation of Bandoch contra Ogilbie of Martoun Eodem die BEaiton of Bandoch having a Miln upon a Burn running by the Lands of Greendykes and Martoun the Tennents of these Lands did by Sheuchs and Casts divert the Water and therewith watered their Ground which thereafter returned to the Burn before it came to Bandochs Dam. Bandoch pursues a Declarator that he and his Predecessors and Authors having been in immemorial Possession of the Miln and having had the free use of the Burn until of late the Tennents of Greendyke and Martoun have diverted the same to water their Ground whereby so much thereof is drunk up by the Ground that there remains not Water sufficient for his Miln In this Process the Lords having before answer allowed Witnesses to be adduced on either part It was proven that Bandoch was in Possession of the Miln with the free use of the Burn these threescore years and that it was commonly known that he and his Predecessors had been in immemorial Possession thereof till the diversion It was also proven that the Tennents of Greendykes had been fourty years in use to water their Ground as now they do It was also proven that the Tennents of Martoun have been in use to water their Ground this 34 or 35. years whereupon it occurred to the Lords to consider whether the watering of the Ground being the most natural and ordinar effect of Burns and Waters the building of a Miln beneath could hinder that liberty or at least if 34. years Possession were not sufficient to continue the watering The Lords did not consider what effect the building of a Miln with a short possession of the Water free of diversion would hinder the Heretors from diverting the Water from watering their Ground but finding that the ancient and immemorial Possession of this Miln and full injoyment of the Water was as much proven as could be known to preceed the 34. years during which the diversions upon the Lands of Martoun was proven they found that the Miln and her priviledge being once so Constitute no less then 40. years peaceable Possession of diverting the Water for watering was sufficient that being the only legal Term and therefore allowed the Lands of Greendykes to continue the watering but discharged the Lands of Martoun to continue the same Sir Alexander Hume contra The Earl of Hume July 14. 1670. THe Right of the Erected Barony of Coldinghame being derived from John Stuart of Coldinghame and Sir Alexander Hume younger of Rentoun he pursues a Declarator against this Earl of Hume and the Creditors and Appryzers of the Estate of Hume to this effect that there being a Contract betwixt umquhil James Earl of Hume and Stuart and others whereby it was Declared that the Earl being Infeft in an Annualrent of 200. pounds Sterling out of the said Barony there was nineteen thousand pounds of bygons of the said Annualrent at the Date of the Contract in Anno 1631. Therefore it was agreed that the Earl of Hume should be put in Possession of the said Barony for payment of the said Annualrent for Terms subsequent and for the nineteen thousand Pounds made up of the bygone Annualrents fructibus non compurandis in sortem and that the Earl of Hume who last Deceased having Assignation to the said Contract from the Heirs of Line of the said umquhil James Earl of Hume recovered a Decreet of Possession upon the said Contract in Anno 1643. and entered in Possession accordingly and that the said Annualrent of 200. pounds Sterling after the Decease of the said James Earl of Hume did cease being only provided to the Heirs-male of his Body which failzing c. that therefore the 200. pounds Sterling affecting the Barony in the first place and being free did satisfie the nineteen thousand pounds and freed the Barony thereof Compearance being made for the Earl of Hume and the Creditors who had Appryzed the Barony of Coldinghame It was alleadged that the Earls intromission was not to be ascribed to his Decreet of Possession in Anno 1648. because he had another anterior Title in his Person viz. A former Contract betwixt the Deceast James Earl of Hume and the Heretors of Coldinghame by which he was allowed to Possess till he were payed of 4000. pounds Sterling payable at four Terms for which or any of the Terms he was to enjoy without an accompt fructibus non imputandis in sortem of which Contract there was a thousand pound Sterling unpayed and upon which Contract Iames Earl of Hume had obtained Possession in Anno 1630. So that the late Earl having right to both these Contracts and Decreets from the Heirs of Line and having entred to the Possession without any Porcess of Removing or Mails and Duties against the Tennents but the former Possessors leaving the Possession the Earl entered without opposition and might ascribe his Possession to either of these Rights he pleased and does
of the Shire but at the Mercat Cross of the Regality in the English time when Regalities were supprest 2dly That the Appryzing was led at Glasgow and neither within the Shire of Air where the Lands ly nor by Dispensation at Edinburgh And albeit the Letters bear a Dispensation to Appryzâ— at Glasgow and that the Denunciation was made accordingly for the Parties to appear at Glasgow yet there was neither Law nor Custom for such a Dispensation and Parties are not obliged to attend but at the head Burgh of the Shire or in communia patria at Edinburgh 3dly The Pursuer has also an Appryzing though posterior yet preferable because solemn and orderly according to the Custom then being It was answered that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities which were then supprest where they were used at the head Burgh of the Shire according to the Custom then and so validats such Appryzings yet this Defender having according to the standing Law of the Land Denunced at the head Burgh of the Regality the contrair unwarrantable Custom cannot annul his Appryzing proceeding according to Law And as to the Dispensation at Glasgow which was nearer the Lands then Edinburgh whatsoever might have been said to the inconveniency of granting such a Dispensation yet being granted it is valide and was then frequent to grant such Dispensations The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time at the head Burgh of the Shire upon Denunciation that it was more solemn and preferable as to the manner of Denunciation than that which was upon Denunciation at the head Burgh of the Regality at that time But the Lords did not determine whether such an Appryzing would have been valide if there had not been a more formall one Nor whether the Dispensation being granted at Glasgow was valide Margaret Scrimzeor contra Alexander Wedderburn of Kingennie Iuly 19. 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie and two others to be Tutors to his Daughter She now pursues a Tutor Accompt wherein this Question arose and was reported to the Lords by the Auditors viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished and became Insolvent and craved to be liberate thereof on that Ground in his Discharge It was alleadged for the Pupil that the Tutor must be lyable from the time that he knew that he was Nominat Tutor for albeit he might have abstained absolutely yet once accepting the Tutory by Nomination of a Testament wherein a Legacy was left to himself he must compt as if he had accepted it at the first for which there was adduced many Citations of Law It was answered for the Tutor that in the Roman Law Tutors were obliged to accept so soon as they knew their Nomination unless they could free themselves by the excuses allowed in that Law But with us it is absolutely free to accept or refuse without any excuse and it is only the acceptance that obliges and so can have no effect ad preterita as to that which perished before acceptance especially in this case the Defender being but one of three Tutors Nominate he ought to have had a time to endeavour with the rest to accept and his lying out was in such a time in which Judicatures did cease by War and Troubles the English after the Battel of Dumbar in September 1650. being possest of Edinburgh and the publick Records there was no Session keeped till the year 1652 or 1653. The Lords found the Tutor was not lyable for any thing that perished before his acceptance The Executors of Walter Hamiltoun contra The Executors of Andrew Reid Iuly 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid for payment of a Bond of 122. pounds Sterling and of a Bond of eighteen pounds Sterling due by the said umquhil Andrew Reid to the said umquhil Walter Hamiltoun The Defenders alleadged that they ought to have allowance of fifty pounds Sterling payed to Walter by Iohn Fleeming by Andrew Reids Order and of Sterling payed to Mckneich upon a Bill drawn by Walter Hamiltoun upon Andrew Reid to be payed to Mckneich and for proving thereof produced missive Letters Written by Walter Hamiltoun to Andrew Reid the one bearing that Fleeming had payed a part of the 50. pound and he doubted not but that he would pay the rest And the other bearing that Mckneich had got payment It was answered for the Pursuers that the Missive Letters could not instruct a Discharge or abate those clear Bonds because they did relate to Bills and Orders upon which payment was made and except those Bills and Orders can be produced the Letters relating thereto can have no effect for it must be presumed that the Bills and Orders have been retired by Walter Hamiltoun as having been allowed in other Bonds which then have been delivered by VValter to Andrew Reid it being the ordinar course amongst Merchants to interchange Bills and Bonds without any other Discharge neither do they take notice of their Missives relating to such Bills or Orders nor can it be supposed they can remember the same The Auditors in this Accompt having taken the opinion of several knowing Merchan's anent their Customs in this point they did all report in Writ and did all agree in this that missive Letters relating to Bills Orders or Discharges had no effect unless the Bills Orders or Discharges were produced and that Merchants neither did nor could have notice of such Missives to retire or interchange the same they did also visit Walter Hamiltouns Compt Book by which there appeared several other Bonds and Accompts betwixt the Parties beside these And in which also the sums contained in these Letters were set down as payment in part of the other Bonds and Compts whereby it appeared that the Bill and Order mentioned in the Letter were interchanged with the former Bonds The Lords found that the missive Letters relating to the Bill and Order had no Effect unless the Bill and Order were produced Hugh Moncrief of Tippermalloch contra Magistrates of Pearth Iuly 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth from whence he having escaped he pursues the Magistrates of Pearth for payment of the Debt who alleadged absolvitor First Because their Tolbooth was sufficient and the Rebel had escaped vi majori having broken the Stone in which the Bolt of the Tolbooth Door entered and forced the Lock in the time of Sermon and that immediately after the Rebel escaped out of the Town and was met with Friends that were trysted there at the time of his escape 2dly They had laid out all wayes thereafter to search for
the Cautioner in the Suspension may be reached It was alleadged no Transferrence because Bagillo â—s Father obtained a general Discharge from Denhead before any Intimation upon Collistouns Assignation and albeit the Discharge be posterior to the Assignation produced it must liberat the Debitor who was not obliged to know the Assigney before Intimation It was answered that the Debitor might pay to the Cedent bona fide before Intimation yet a Discharge obtained from the Cedent after Assignation would not liberate against the Assigney though it were before Intimation and this general Discharge bears no onerous Cause 2dly This general Discharge being only of all Processes and Debts betwixt Bagillo and Denhead at that time it cannot extend to this sum assigned by Denhead long before and who could not know whether the Assigney had intimate or not and cannot be thought contrair the Warrandice of his own Assignation to have Discharged the sum Assigned especially seing there was an Assignation long before which was lost and the Intimation thereof yet remains and this second Assignation bears to have been made in respect of the losse of the former and yet it is also before this general Discharge The Lords found the general Discharge of the Cedent could not take away this sum formerly assigned to him though not Intimat unlesse it were proven that payment or satisfaction was truely made for this Sum. Alexander Wishart contra Elizabeth Arthure February 4. 1671. UMquhil Mr. William Arthure being Infeft in an Annualrent out of some Tenements in Edinburgh and having entered in Possession by lifting of Mails and Duties some of his Discharges being produced Alexander Wishart as now having right to the Tenements pursues a Declarator against Elizabeth Arthure only Daughter to Mr. William for declaring that the sum whereupon the Annualrent was Constitute was satisfied by Intromission with the Mails and Duties of the Tenements The Defender alleadged that this was only probable scripto vel juramento and not by Witnesses for an Annualrenter having no Title to Possess out-put and in-put Tennents cannot be presumed to uplift more than his annualrent especially seing his Discharges produced for many years are far within his annualrent and it were of dangerous consequence if Witnesses who cannot prove an hundreth pounds were admitted not only to prove Intromission with the Rents so far as might extend to the Annualrent but so much more as might satisfie the Principal and thereby take away an Infeftment for albeit that Probation has been Sustained to extinguish Appryzings which are rigorous Rights yet not to take away Infeftments of Annualrent It was answered that albeit Witnesses are not admitted where Writ may and uses to be adhibite in odium negligentis who neglected to take Writ Yet this is no such case and therefore in all such Witnesses are admitted for if the Pursuer had insisted against the Defender for intrometting with his Mails and Duties of whatever quantity and time within Prescription Witnesses would have been admitted The Defender could only have excepted upon his Annualrent which would have been Sustained pro tanto but the Pursuer would have been admitted to prove further intromission which being by vertue of his Security for a Sum and in his hand would Compense and Extinguish that Sum which is all that is here craved and whereupon the Witnesses are already Adduced The Lords Sustained the Probation by Witnesses for the whole intromission to be imputed in satisfaction of the Principal Sum and Annualrents Lowrie contra Gibson Eodem die LOwrie being Superiour to Gibson in a Feu pursued him before the Sheriff for annulling his Feu for not payment of the Feu-duty and obtained Decreet against him and thereafter Pursued him before the Lords for Mails and Duties wherein Compearance being made Gibson made an offer that if Lowrie would free him of bygones and pay him 1600. merks he and his Authour would Dispone their whole Right which being accepted by the Superiour Decreet was pronunced against Gibson to denude himself upon payment Shortly thereafter Gibson drew up a Disposition and Subscribed it in the Terms of the Decreet and offered it to Lowrie who refused it because his Author had not Subscribed Thereafter Gibson Suspended upon Obedience and Consigned the Disposition which was never Discussed but Gibson continued in Possession still from the Decreet which was in Anno 1650. Now Gibson raises a Reduction of the Sheriffs Decreet of Declarator annulling his Feu because the Sheriff was not a competent Judge to such Processes and because Gibson had offered the Feu-duty which was refused so that the not payment was not through his fault and also insisted for Reduction of the Lords Decreet as built upon the Sheriffs Decreet and falling in consequence therewith And as for any offer or consent the assertion of a Clerk could not instruct the same unless it had been warranted by the Parties Subscription It was answered that Gibson having Homologate the Decreet by an offer of the Disposition conform thereto which was only refused because it wanted the Authors Subscription and having Suspended upon Obedience he cannot now object either against the Decreets or Consent It was answered that so long as the Decreets of the Sheriff and the Lords were standing Gibson might be compelled thereby to Consign the said Disposition but that is only on these Terms to be given up if the Lords saw Cause and hinders not Gibson to alleadge why it should not be given up And as to the offer to deliver the Disposition the Instrument of the Nottar could not instruct the same but only Gibson's own Oath The Lords found that albeit the Consignation for the Suspension would not have prejudged Gibson yet the simple offer to deliver the Disposition did so Homologate the Decreets and Consent that he could not quarrel the same but they found it not proven by the Instrument without the Oaths of the Witnesses insert in the Instrument And in regard that Lowrie had letten the matterly over for more than twenty years they Declared that the Agreement should only take effect from this time and that Gibson should not be comptable for the bygone Duties Ninian Home contra Francis Scot. February 7. 1671. NInian Hume having Charged Francis Scot upon a Bond of 550. merks He Suspends on this Reason that both Parties having referred the matter verbally to an Arbiter he had determined 200. merks to be payed for all whereupon Hume had pursued It was answered that verbal Submissions and Decreets Arbitral are not binding but either Party may resile before Writ be adhibite The Lords found the Reason was Relevant to be proven thus by the Chargers Oath that he did submit and by the Arbiters Oaths that they did accordingly determine Lowrie of Blackwood contra Sir John Drummond Eodem die SIr Robert Drummond of Meidhope having Disponed his Lands of Scotstoun to Sir Iohn Drummond for love and favour and for better incouraging Sir Iohn to pay his Debt as the