effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
MenÈies contra Burnet P. 14. 28. contra Miln P. 21. Miltoun Lady contra Whiteford P. 64. Minister Moram contra Bairfoot P. 11. Mitchel contra Mitchel P. 30. Mitchel contra Litlejohn P. 174. Mitchelson contra Mitchelson P. 204. Monmouth Duke and Dutchess contra Scot. P. 40. Monmouth Duke contra Earl of Tweeddale P. 117. Monteith contra E. Callender and Gloret P. 22. Mr. Henry Morison P. 141. Moubray contra Arbuthnet P. 90. Mouswel La. contra the Creditors on the Estate P. 152. Mouswel its Creditors contra the Lady and her Children P. 205. Mure contra Law P. 73. contra Murehead and Scot P. 60. Murray contra Tutor of Stormont P. 71. Murray contra P. 217. N. NAirn contra Scrymgeor P. 170. Nairn contra Stewart P. 215. Neilson contra Arthur P. 67. Neilson contra P. 170. Nevoy contra L. Balmerinoch P. 196. Newburgh Earl contta Stewart P. 15. Nicolson contra Laird of Philorth P. 50. Nisbet contra Hamilton P. 157. O. OGilvie contra Buckie P. 164. Oliphant contra Drummond P. 7. Oliphant contra P. 112 143. Oxford Viscount contra Cockburn P. 210. P. PAllat contra Veatch P. 201. Paplay contra Magistrats of Edinburgh P. 61. Park contra Rysly P. 158. Parkman contra Allan P. 55 61. Paterson contra Johnston P. 187. Paterson contra McKenÈie P. 189. Paton contra Stirling of Ardoch P. 63 75 82. Patrick contra Anderson P. 220. Perths Sheriff contra P. 153. Petrie contra Richart P. 12. Pilton contra Creditors of the Lord Sinclar P. 87. Pitmedden contra Seatons P. 96. Pitrichie Lord contra Laird Geight P. 181. Pittarro contra E. Northesk P. 97. Pittarro contra Tennents of Redmyre P. 166. Pollock contra Pollock P. 45 57. Pringle contra Cranston P. 4. Pringle contra Pringle P. 221. Purves contra Blackwood P. 20. Purveyance contra Knight P. 220 R. RAe Master contra Dumbyth P. 156. 218. Ramsay contra Carstairs P. 69. Ramsay contra Zeaman P. 168. Rankin contra Skelmorly P. 47. Rattraw contra P. 125. Reid contra Tailzifer P. 20 Reid contra Lady Lundy P. 65 Reynolds contra Erskines P. 182 Rig contra Rig. P. 166. Rioch contra P. 49. Rutherford contra Weddel P. 193. S. SAndilands contra Earl of Hadington P. 69. Scott contra Murray P. 127 Scott contra Kennedy P. 155 Scott contra Toish P. 191 contra Scot P. 60 Scrimgeor contra Kingheny P. 111 Shaw contra P. 26. 58 contra Sheill P. 176 Sheill contra Parochiners P. 190 Simpson contra Adamson P. 59 Sinclar Hugh's Creditors contra Annandale P. 71 Sinclair contra Home P. 215 Spence contra Scot P. 184 Spencerfield Lady contra Hamilton P. 75 Steill contra Hay P. 9 Stenhouse Laird contra Heretors of Tweedmoor P. 168 Stewart contra Mcduff P. 89 Stewart contra Riddoch P. 138. 212 Stewart contra Hay P. 186 Stewart contra Whiteford P. 207 Strachan contra Morison P. 57 T. TAcksmen of the Customs contra Greenhead P. 45 Tailfer contra Sandilands P. 214 Tait contra Walker P. 201 contra Tait P. 219 Tarsappies Creditors contra Kilfaunes P. 70 Tennent Young c. contra Sandy P. 200 Thoirs contra Tolquhone P. 85. 96 Thomson contra Mckittrick P. 10 Thomson contra Stevenson P. 26. 30 Thomson and Halyburton contra Ogilvy and Watson P. 128 Thomson contra Eleis P. 155 Torwoodhead Lady contra Tennents P. 121 Traquair Lady contra Earl of Wintoun P. 60 Trotters contra Lundy P. 44 Trotter contra Trotter P. 56 Tulliallans Minister contra Colvil and Kincardine P. 108 Tutor to the Laird of Aitons Daughter Supplicant P. 135 U. URquhart contra Frazer P. 23 Urquhart contra Cheyne P. 24 V. VAâ—se contra Sandilands P. 147 151. Vanse his Petition P. 146. Veatch contra Duncan P. 3. Veatch contra Creditors of Ker and Pallat P. 118 123 145 201. Veatch contra Hamilton P. 154. W. WAllace contra Symson P. 179. Wallace contra Murray P. 198. Wamphray Laird Supplicant P. 153. Warden contra Berrie P. 147. Watt contra Halyburton P. 34. Watson of Dunykier contra his Vassals P. 36. Watson contra Law P. 37. Wauch contra Jamison P. 163. Weavers of Edinburgh contra Magistrats thereof P. 29. Wedderburn contra Scrymgeor P. 9 14. Weir contra E. Bramford P. 189. Weymes contra Bruce P. 131. Whitehead contra Straiton P. 43. Wilkie contra P. 13. Wilson contra Magistrates of Queensferry P. 51. Wilson contra Deans P. 155. Y. YOung contra Young P. 29. Z. ZInzian contra Kinloch P. 30 An Alphabetical INDEX FOR Finding the Principal Matters handled in my Lord DIRLETON 'S Collection of Decisions Where it was thought fit for better Orders sake to prefix to them Numerical Figures and the Letter d. Whiâ—h there and in the following INDEX denotes either Decision or Dispute A. ABBEY should not protect against Captions decision 127. ABIDING by a Writt d. 142. see d. 168. d. 262. d. 265. d. 286. d. 386. d. 403. Abideing by a Bond as truely assigned and delivered by the Cedent d. 11. Abideing by in Improbations d. 291. ABSOLUTE Warrandice of Kirk-lands extended to warrand from the designation of a Gleib Tho it was Alledged That ex natura rei and not ex defectu Juris the Gleib was evicted but not to extend to a Supervenient Law d. 93. ACTIO TVTELAE d. 314. ACT before Answer d. 183. ADJUDICATION d. 270. d. 305. d. 324. see d. 45. d. 107. Adjudication of the Earl of Bramfords Estate d. 387. ADVISEING of the Cause see d. 73 If an ADVOCATE upon a Bill summarly given in against him be obliged to deliver up v. g. Goods entrusted to him or if he be only obliged to Answer summarly in Complaints against him in Relation to his Office and Trust d. 290. Advocates who had withdrawn their Petition for Readmission d. 226. ADVOCATION d. 261. d. 228. d. 294. d. 396. Advocation of an Edict of Executry d. 433. Advocation upon a Competition of double Rights d. 279. All Advocations before they be pass'd to be Reported to the whole Lords d. 260. ALIENATIONS in prejudice of Creditors d. 287. ALIMENT d. 165. d. 177. d. 414. d. 455. Aliment and Fee d. 350. Aliment craved in the interim untill a Provision falls payable d. 2. ANN. see d. 194. d. 379. ANNUALRENT d. 408. see d. 45. d. 146. d. 154. d. 266. d. 407. An Annualrenter Comprysing for the principal Sum may pass from his Comprysing and recur to his Infefâ—ment of Annualrent d. 83. ANNUITY see d. 241. Annuity payable out of the first and readiest Rents found to be entirely due tho the Rents were exhausted with Debts d. 99. Annuity to a Wife out of Lands lyable to Publick Burdens d. 143. APPEARAND HEIR d. 119. see d. 63. d. 95. d. 270. d. 450. Appearand Heir to a Baron cannot have a Moveable Heirship not being actually Baro. d. 209. ARBITRIVM JVDICIS not allowed to alter a punishment determined by Law d. 20. ARRESTMENT see d. 201. d. 300. Arrestment being
in the said Bill being accepted by them all simply without mentioning that they had accepted the same only for their own Parts It was Alledged That they were only lyable for their own Parts being correi debendi which is understood in Law that they should not be lyable in solidum unless it were so exprest especially seing the Pursuer cannot say that they were either Partners or that each of them had provision extending to the whole Sum. The Lords having thought fit to try the custom of Merchants and to take the opinion thereupon of certain Merchants in Edinburgh and the Report being positive that it was the custom of Merchants both in the place where the Bill was drawn and here that there should be Action in solidum upon such Bills when they are drawn and accepted simply in manner foresaid Found the Defenders lyable in solidum D. 232. McKintoish contra McKenÈe 29. January 1675 A Decreet against a person holden as Confest before the Lords of Session about 20 Years agoe was questioned as null upon that pretence that it did not bear that the Party against whom it was given was personally apprehended but only that he was lawfully cited The Lords Found That after so long time the said Decreet could not be declared null and void upon pretence of an intrinsick Nullity In regard the said Decreet did bear that the Defender was lawfully cited to give his Oath and he could not be thought to be lawfully cited unless he had been personally apprehended and praesumitur pro sententia and that omnia are solenniter acta unless it were made appear by production of the Execution that the Defender was not personally apprehended And therefore the said Reason of Nullity was Repelled Reserving Action of Reduction as Accords Monro Clerk D. 233. Scrimzeor contra Kingheny 2. February 1675. MAjor Scrimzeour having named in his Testament in Anno 1650. Sir John Carnagie and the Tutor of Purie Fodringhame and Alexander Wedderburne of Kinghenie to be Tutors to his two Daughters Margaret Scrimzeour one of the said Daughters pursued the said Alexander Wedderburne for Compt and Reckoning and Payment and an Auditor being appointed and that Question being started before him viz. Whether the Tutor should be Lyable for Negligence from the time that he accepted or before after he knew that he was named Tutor And upon the Auditors Report It was Found by the Lords that he should be lyable only from the time of his accepting and yet the Pursuer having desired and got a Hearing in the Innerhouse It was again urged for her that the Tutor should be lyable after he knew that he was named and did cease to do that Diligence that was incumbent to him and diverse Citations were adduced from the Civil Law and the Titles of the ff Cod. De Tutela Tutoribus And De Administratione periculo Tutorum which ought to militate in this case especially in respect the said Defender was not only named Tutor but was a Legator a considerable Sum being left to him by the said Testament which Law presumes was left to him in contemplation of the burden of Tutory put upon him so that having accepted the said Legacy and having confirmed himself Executor Legator he could not decline the Office not to be Lyable as Tutor or ut Protutor And it was farder urged that as Executor Legator he was lyable to do Diligence To which It was Answered That the former Interloquitor was opponed being just and upon Relevant Grounds of Law in respect the Civil Law is not received by us altogether in the case of Tutors the Office of Tutorie by the Civil Civil Law being munus publicum necessarium which no person can decline unless he have and alledge a just Ground of Excuse within the time limited by that Law whereas by our Law and Custom when any person or persons are named Tutors they are at liberty to accept the said Office or not so that a person named Tutor until he accept neither is nor is obliged to do the Duty of a Tutor And albeit by the Civil Law a Legacy being left to a Tutor is presumed to be left eo intuitu and upon condition that he should accept to be Tutor yet by the Civil Law if the person named Tutor do not actually get the said Legacy nisi consecutus sit which are the words of the said Law he is not obliged to accept the said Office and it is not nor can it be said that the Defender got the said Legacy before he did accept And as to that other Ground that the Defender being Executor Legator was obliged to do Diligence It was Answered That by late Decisions an Executor Creditor is only lyable to intromet in order to his own satisfaction and an Executor qua Legator is in the same case as an Executor Creditor seing a Legacy is a Debt payable out of the Executry and the Legator has no interest to confirm but to the effect he may be payed of the same The Lords Found That a Tutor is lyable only from the time that he did accept and that the leaving to him and his accepting of a Legacy did not alter the Case unless before his accepting of the said Office he not only had owned but got the said Legacy And this Pursuit being only actio Tutelae and for Compt and Reckoning against the Defender as Tutor they did not determine the said Question How far an Executor Legator should be lyable but reserved the same until the Defender should be pursued as Executor The Lords in the Debate amongst themselves some of them did urge these Arguments That a Tutor being lyable only ratione Officii he cannot be lyable before he accept the said Office it being inconsistent with Law that he should be lyable to the Duty of an Office before he have it which would be Filius ante Patrem 2. In Law a Tutorie is quasi Contractus and as in all Contracts it is required that there should be the mutual Deeds of both Parties contracters and the Nomination which is the Deed of the Defunct did not bind the Tutor until he bind himself by accepting which is his own Deed. 3. That a Tutor having a Legacy should be obliged to accept it is only provided by the Civil Law which is the Municipal Law of the Romans and is not of force with us until it become our Law either by a Statute or Custom authorizing the same and even by the Civil Law praesumitur only that the Legacie left to the Tutor is upon the account foresaid but that Presumption is only in the case where it cannot be thought that the Defunct would have left the Legacie upon another account viz. of Relation or any other Consideration Whereas in this case it cannot be thought that the said Legacy was left to the Defender upon the account that he was Tutor in respect he being the last named of the three Tutors there were
Veatch But because some of the Lords in voting were non liquet the Business was delayed Vide supra 9. Febr. 1675. inter eosdem And Vide infra 10. Novemb. 1675. D. 256. Parishioners of Banchrie contra Their Minister 16. February 1675. IN the Case of the Parishioners of Banchrie against their Minister The Lords Found That the Act of Parliament 3. Sess of his Majesties 1st Parl. cap. 20. Ordaining that ilk Minister should have Grass for one Horse and two Kine over and above their Gleb Did import That Ministers should have the said Grass or 20. lib. conform to the said Act albeit their Glebs which they had formerly did extend to four Aikers and much more than would be Grass if the same were left lee to that purpose for a Horse and two Kine Some of the Lords were of a contrary Opinion seing by the Act of Parl. K. Jam. 6. Parl. 18 cap. Where there is no arable Land 16. Soums Grass is to be designed for the four Aikers which the Law appoints to be designed for Glebes and upon the Ground foresaid Ministers having 16 Soums Grass may pretend to have alse much more Grass designed to them as will keep a Horse and two Kine or 20. lib. Hattoun Reporter Hamilton Clerk D. 257. Binning contra Brotherstanes eod die ALexander Binning by Contract of Marriage with Margaret Trotter was obliged to resign a Tenement of Land in Favours of himself and his Wife in Liferent and the Heirs of the Marriage in Fie and accordingly Resignation being made Infeftment was taken to him and his Wife and their Heirs foresaid Thereafter the said Margaret having deceased there being only one Daughter of the said Marriage Margaret Binning the said Alexander married a second Wife and did oblige himself to provide the Heirs of that Marriage to 10000 merks And thereafter did induce the said Margaret his Daughter of the first Marriage after her Minority to give a Bond obliging her to resign the abovementioned Tenement to which she was to succeed as Heir of Provision to her Father in favours of her self and the Heirs of her own Body which failÈiening in favous of Alexander Binning her Brother of the second Marriage and his Heirs whatsomever and to do no Deed to prejudge him anent the Succession The said Margaret Binning being thereafter Infeft as Heir of Provision to her said Father in the said Tenement did by Contract of Marriage with William Brotherstanes oblige her self to Resign the said Tenement in favours of her self and the said William and the Heirs of the Marriage whilks FailÈieing his Heirs whatsomever and upon the said Resignation she and her Husband were Infeft Thereafter the said Alexander Binning her Brother did obtain a Decreet against the said Margaret and her Husband for implement of the said Bond and for granting a Procuratory of Resignation for resigning of the said Tenement conform to the said Bond in favours of the said Margaret her self and the Heirs of her Body whilks FailÈieing in favours of the said Alexander And in obedience to the said Decreet the said Margaret and her Husband did resign the said Tenement and Infeftment was taken to the said Margaret and the Heirs of her Body whilks FailÈieing to the said Alexander After the said Margaret her decease the said Alexander did obtain Decreet against the Tennents of the said Tenement for Maills and Duties which being Suspended by the said William Brotherstanes and turned in a Lybel It was Alledged for him that he ought to be preferred being Infeft long before the Pursuer and 7. years in possession Whereunto It was Replyed That the Defender was denuded of any Right that he had by the Infeftment foresaid in favours of the said Margaret and her Heirs of Provision foresaid and that the Pursuer had thereby Right as Heir of Provision to her To which It was Duplyed That being incarcerat upon the said Decreet against him and his Wife for Implement he had resigned for Obedience as Husband and Authorizing his Wife but did not intend nor could not be decerned to denude himself of his own Right which he had for so Onerous a Cause by his Contract of Marriage The Lords having considered the Procuratory of Resignation granted by the Defenders Wife and himself did Find that he had granted the same not only for Obedience and for his Interest as Husband but for his own Interest and as taking burden for his Wife and so did denude himself of any Right that he had in favours of his Wife and the Pursuer as Heir of Provision And therefore preferred the said Alexander Upon the Debate It was agitate amongst the Lords whether such Clauses in TailÈies viz. That no deeds should be done in prejudice of the Heirs of TailÈie and Provision and their Succession do import that the Granter of such Obligements should not have power to dispose of the Land that is TailÈied and have that liberty which is inherent to Dominium Or if it should import only that they cannot break the TailÈie or provide the Lands in TailÈie to other Heirs The President was of Opinion that the Fiar could not dispone nor do any other Deed And that the said Clause was not restricted to the altering or breaking of the TailÈie But this point was not decided D. 258. Ratraw contra _____ 16. February 1675. AN Appearand Heir having upon an Exhibition pursued by him to the effect he might advise whether he would be Heir obtained the Writes to be exhibited in the Clerks Hands did thereafter upon a Bill desire the samen to be delivered pretending that he had use for the Writes for serving himself Heir and no other person could have any Interest for keeping them but himself The Lords granted the desire of the Bill Albeit some of the Lords thought that the Writes could not be delivered to him unless he were Heir but only such as he should have use of for his Service upon a Ticket to the Clerk to redeliver the same if he should not be served Heir within a certain time And that the Creditors had Interest seing the Appearand Heir if he should resolve not to be Heir might embazle and put the Writes out of the way in prejudice of Comprysers D. 259. Hay contra Gray 4. June 1675. A Merchant having given a Commission to a Skipper to carry a parcel of Salmond to Bourdeaux and upon the Sale of the same there to bring home Wines and Prunes pursued the said Skipper for the said Salmond and profite thereof and referred the Lybel to the Skippers Oath And the Defender having qualified his Oath in these Terms viz. That being upon his Voyage to France he was forced to go in to Holland by Storm of Weather So that he could not go to Bourdeaux And that he was forced to sell the Salmond in Holland and with the price of the same did buy a parcel of Cards and other Goods mentioned in his Oath for the Pursuers use and having embarqued
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour