direct infer Confiscation in this case there was no Counterband Goods Aboard so that though the true Port had been the Enemies Port it would not have inferred Confiscation January 21. 1673. Hendrick Anderson Master of the Sun of Dantzick contra Captain Dowglas The like was found the 19. of February 1673. the Owners of the Palm-tree and Patience contra Captain Atchison and upon the 27. of February 1673. The owners of the King David contra Captain Donaldson where a Swedish Ship wanting a Pass conform to the Swedish formula and not being upon Oath though these were found presumptive Probations of the Interest of Enemies yet not so pregnant as to exclude a contrary positive Probation that the property of the Ship and Goods belonged to Free-men and the not expressing the Port in the Pass of a Swedish Ship was not found so to infer the Goods to belong to Enemies but that it admitted a contrary Probation that the Ship and Loading belonged to Free men and because the Loading was Pitch and Tarr which is Counterband the not expressing the Port being essential as to Counterband would have Confiscate the Ship and Loading unless it had been secured by the Swedish Treaty declaring Pitch and Tar and others being the Growth of Sweden not to be Counterband February 28. 1673. The Master of the St. Peter of Stoad contra Captain Stewart Passes for Ships in time of War must be renewed for every Voyage and cannot otherwayes express the kinds and quantities of the Cargo which was sustained as one of the reasons of the Adjudication of the Ship called the Elsinburgle at the instance of Captain Dowglas decided July 18. 1673. yet a Ship was not found Prize as wanting a Pass for the present Voyage in respect She having loused at Nantz and having there a particular Pass she was forced in to England by stress of Weather and there sold her Loading and went back to Nantz and took in the like Loading for the same Owners and Port and therefore altered not the first Pass June 17. 1673. Captain Donaldson contra Master of the Debora It is Likwise most necessar that Passes be truly granted upon Oath made which is the greatest security against colourable Documents and therefore was sustained as one of the Grounds of Adjudication of the Ship calledth 〈◊〉 St. Mary that the Master by his Oath acknowledged that he had not made Faith as the Pass bears as was found June 25. 1673. and upon that reason a Ship was found Prize in which case also one Witness Deponed that papers were thrown over-board July 9. 1673. Captain Gilles contra the Owners of the Bounder Double Documents infer Confiscation but that is Chiefly understood when the Documents are contrary in material points but where there was one pass from the Colledge of Commerce and another from the King of Sweden having some contrariety but not in material points the same was not found to make the Ship prize June 13. 1673. Captain Winchester contra the Owners of the St. Andrew The throwing of papers over-board or destroying the same at the time of the captur is a most pregnant ground of Confiscation for thence it is presumed that these papers would have instructed the property to belong to Enemies and therefore being proven but by one Witness it put the burthen of probation upon the strangers that the Ship and Loading belonged to free men February 28. 1673. The Master of the White Dove contra Captain Alexander regard was also had to the same though but proven by one Witness in the Confiscation of the Bounder July 9. 1673. and if there were concurring Witnesses in this point it would infer praesumptionem juris de jure not admitting contrair probation Ships have oftimes been found prize by the concurse of several evidences of a contrivance under colourable Documents and therefore a Ship was found prize because the pass did not mention the Port which a Toll-breif bore to be Breme and the Master by his Oath acknowledged the Port to be Amsterdam and that the Owners were other persons then were exprest in the pass and that the Master resided in Holland though the pass bore him to to be a Burgess in Dantzick against which a contrary probation was not admitted January 23. 1673. the Owners of the Crown of Dantzick contra Captain Lyon a Ship was also Confiscat because the Master and Steersman deponed that they knew not to whom the Goods belonged but that they had order from a Merchant in Amsterdam to consign them in the Pack-house of Stockholme to be delivered to such persons as should show such marks July 10. 1673. Captain Frazer contra Master of the Flying Heart and in like manner the Fortune of Trailsoundt was found prize July 22. 1673. because it was acknowledged upon Oath that if the Ship were taken by Hollanders the Company should depone the Goods belonged to the Tarr Company in Stockholme as the pass bears and if it came safe to Scotland or England they should declare the same belonged to Samuel Souton an English man residing in Sweden Albeit a part of Ship or Loading be found to belong to Enemies and that thereby the whole becomes prize as being partners with the Enemy in carrying on their Trade yet these who can show that they were in an invincible ignorance of the interest of an Enemy and did all that they could do to secure against the same by taking the Oaths of the Owners of the whole Ship and Loading that the property belonged to themselves and no part thereof to an Enemy it would take off the Delinquence of that party and preserve their interest which was never pleaded during these Wars but by some of the Kings Subjects as in the first War the King having by His Proclamation warranted all Ships even from Enemies to be employed for bringing Timber for the rebuilding of London a great part whereof was then lately burnt Certificats and passes being alwayes had from the Duke of York Lord High Admiral of England whereupon Iohn Dyssone Merchant at London Fraught a Ship of Norway whereof Booz Neilson was Master called the Raphel to Import to London six thousand Dail boards the Ship in her Voyage to London was taken by Captain Wood and the whole Ship and Loading adjudged as prize which being brought before the Lords by Reduction they found that the Ship and Loading became prize because there were found Aboard fifteen hundred Dails belonging to the Owners or Company who then were in enmity in the Danish War and yet the six thousand Dails belonging to the London Merchant who had contracted bona fide by the Kings Proclamation did not become prize with the Ship as was decided July 13. 1669. for the London Merchant not being the place of Embarquing could not know whether there was more entered then the Dails he Fraughted or whether the Owners gave truly an Oath upon the property and quantity of the Loading And in like manner Sir Francis
in arbitrio judicis whether to grant a conjunct probation before answer to the relevancy of the reasons of Adjudication or to discuss the relevancy first and then to admit the points found relevant to probation but in the other way witnesses are adduced for either party yet this being only ex nobili officio the Lords remitted the Cause to the Admiral and ordained him to proceed to discuss the relevancy there being pregnant grounds of Adjudication instantly verified June 12. 1673. and upon his refusal they did Advocat the Cause to themselves they did also ordain the Admiral to proceed upon the evidences adduced to adjudge or assoilzie without allowing a conjunct probation before answer and declared that if he proceeded not accordingly they would Advocat the Cause albeit the Danish Treaty bear that their Ships shall not be medled with or their Goods disloaded till they be adjudged in a Court of Admirality for the Lords are the Kings great Court of Admirality in the same way as his Commissioners in England are Judges in the second instance of Pryzes brought before the Admiral of England December 17. 1673. Captain Stuart contra the owners of the Danish Ship called the Seal Fish When Questions concerning Prizes come before the Lords they do not exclude the Defences of strangers as being competent and omitted in the first instance though that be a Rule by our custom but do proceed according to the common Law of Nations and so they decided July 23. 1667. Hans Jurgan contra Captain Logan which was the first case occurring in that question and was always followed after The rule by which the Lords have always proceeded in the matter of Pryzes hath been the Law and Custom of Nations and therefore the Tenor of the Admirals Commission was not found to be the rule February 21. 1668. Bartholomew Parkman contra Captain Allan The treaties betwixt the King and his Allies in so far as they differ from the common Law of Nations have always been allowed by the Lords as exceptions from that general Rule and good Defences to the people comprehended in these Treaties In dubious cases the Lords have proceeded by the Kings Instructions ordinarly adhibit to the Admiralities of all his Kingdoms that they might keep one uniform rule with strangers in which not only respect hath been had unto Justice but even favour towards Allies and policy and prudence towards all Newters that none of them might receive irritation by the extension of Justice in savourable case 〈◊〉 The ground of Justice for confiscating the Ships of those who are not enemies is that they have assisted the enemy in carrying on the War and thereby became accessories to the War and by that Delinquence do confiscat the Ships and the loading by which they have had accession for the Law and Custom of Nations hath very fitly restricted the reparation of this Delinquence so as not to state the parties offenders as enemies and thereby to make all their goods confiscable as enemies goods but doth limit the same to these Ships in which the concurse is acted ifthey be seazed in that Voyage in which they give assistance or in the immediat return Ingagement in War by Princes and States cannot justly hinder the free Trade of other people upon whom neither party hath either Obligation or Jurisdiction but the common consent and Custom of Nations requireth an equality and newtrality in all other parties that they concur not in the War with either party forbearing assistance in the War which is by furnishing them men instruments of War materials specially requisit for the present War Money furnished for publick use and in some cases Victual as when carried to places besieged and other things which have promiscuous use in Peace and War when there is a special application there of to the necessar use of the War as Iron Brass Leid Pitch Tar and the like which are therefore called counterband-goods or prohibit-goods and by the Denunciations of War intimation is ordinarly made to Newters from what things to abstain as from carrying of counterband-goods towards enemies Ports or carrying the goods and ware of enemies whereby their Trade is promoted and they enabled to maintain the War or by carrying on their Trade under the colour of the Trade of Neuters and therefore in time of War Neuters do instruct their Vessels with Passes and other Documents instructing that the bottom and goods belong to their subjects free-men and that the parties ingaged in the War or any of their subjects have no interest therein which Passes are upon the oaths of the owners of the Ship or Masters thereof and those who embarque the loading and where there is any Treaty the formula of such Passes useth to be exprest always including an oath and being given by such Magistrates as are agreed upon First Then seing the accession of Neuters is a Delinquence it can have no place where there is not a publick denunced War which were presumed to be known to the Delinquent and therefore the Ship and Goods belonging to Neuters were not found Prize because carrying counterband-goods towards the enemies Ports unless the War had been nottourly known at the place where they loosed at the time when they loosed and acts of hostility and declaring of Prizes in neighbouring places was not found sufficient July 22. 1667. Hans Jurgan contra Captain Logan The like was found of a Ship of Hamburg carrying counterband-goods to Danish Ports after acts of hostility betwixt the King and the Danes because the Ship was taken before the Proclamation of the War against the Danes February 25. 1668. Merchants of Hamburg contra Captain Dishingtoun If Ships have in them counterband-goods they may be brought up if the Port be not exprest upon oath and be a free Port or be contradicted by the oaths of the Skipper and Company which infers a full probation in case they acknowledge an unfree Port and a presumptive probation in case the Pass bear not a free Port yet it admits a contrary probation for proving of the true Port January 21. 1673. Hendrick Anderson Master of the Sun of Dantzick contra Captain Dowglas The like was found where the Pass made the Port uncertain and ambiguous bearing London to be the Port but a greater fraught promised if the Ship was brought up into Holland which was found to be elided by a positive contrair probation February 19. 1673. the owners of the Palm-tree and Patience contra Captain Atchison Amongst counterband Pitch and Tar were found comprehended July 9. 1668. Captain Allan contra Bartholomew Parkman Timber propper for Shipping as Masts c. is unquestionably counterband but Timber of promiscuous use is not counterband except in special cases for the peculiar use of the War There is a particular Article in the first Treaty betwixt the King and the Swedes by which it is declared that in regard the most of the materials of the Swedish Trade are Pitch Tar 〈◊〉 c.
but Moveables The next Degree of the nearest of Kin is Brothers and Sisters german and failing these Brothers or Sisters by the Father's side only or their nearest Descendents of the same Degree without Right of Representation As to the third Degree of Succession in Moveables failing Descendents and Brothers and Sisters and their Descendents the Question is Whether the Father surviving will exclude his own Brother or if there be any place for Ascendents in the Succession of Moveables Such Cases occur rarely and I have not observed it debated or decyded It is but of late since the like Case hath fallen in the Succession of Heirs and Heritable Rights wherein our Custom hath according to the course of the Law of Nature found the Father to be Heir to his Son and not the Father-brother or any of his Descendents and in that have differed from the Custom of England And there is no reason why if the Question should occurr that the like should not be done in Moveables The next Degree is the Father's Brethren and Sisters german which failing the Father's Brethren and Sisters by the same Grand-father and their Descendents in the next Degree In all which both Bloods exclude one Blood And if there be no Agnat or Kinsfolk found who can instruct their propinquity of Blood the Goods become caduciary and confiscat and belong to the King as ultimus haeres who and his Donatar have the same interest that the nearest of Kin would have had Vide Title Confiscation Section Ultimus hares Children in familia have not only the common Right as nearest of Kin but have their legittime Portion called the Bairns part in which their Father cannot by Testament Legacy or Donation ' mortis causâ prejudge them or by any other Deed on Death-bed By the Premises it appears that the whole power of Defuncts as to Succession in their Moveables is to nominate Executors and give Legacies 33. The Nomination of Executors is properly called a Testament Additions thereto or Alterations thereof are Codicils Legacies may be left whether there be Testaments or not and either in the Testament Codicils or apart but all is ambulatory during the Defunct's Life and may be taken away expresly or implicitely by posterior or derogatory Deeds unless the Defunct be obliged by Contract inter vivos not to alter the same In which case Contract and Paction doth so far over-rule the power of testing that posterior Deeds whether expresly or implicitely altering would be ineffectual like to that Obligement to leave a Legacy which was found an effectual Legacy without further Solemnity January 30. 1631. Houstoun contra Houstoun 34. The effect of Testaments being so small the Solemnities thereof are no other than what are requisit to accomplish any other Writ For two Witnesses suffice and if the Testament be holograph it is valid Or if the Testator cannot or be not able through Sickness to write a Testament will be sufficient by a Notar and two Witnesses notwithstanding the Act of Parliament 1579. cap. 8. requiring to Writs of importance two Notars and four Witnesses which holds not in Testaments though containing matter of great importance 18. of January 1623. Bog contra Robert Hepburn Yea Ministers are authorized as Notars in the case of Testaments Par. 1584. cap. 133. The reason here of is because Ministers are ordinarly with sick Persons the time of their Death Nuncupative Testaments are not of force in Scotland For though Legacies left within an hundred pounds may be nuncupative without Writ yet the Nomination will not so subsist nor be respected by the Commissaries And therefore a verbal Testament taking away a formal Legacy subscrived but by initial Letters was not sustained though made at Sea and so in a Case of necessity and not admitted to be proven by Witnesses in the Ship Feb. 18. 1631. Houstoun contra Houstoun 35. The effect of Testaments is not greater though made in England the Testator residing there and so extends not to an Heretable Sum due in Scotland left in Legacy by the Testator being a Scots-man July 3. 1634. Melvil contra Drummond Hope Testaments Purves contra Chisholm Executors of Collonel Henrison ibid. Neither do nuncupative Testaments of Scots-men though residing animo remanendi abroad and dying there have any effect with us albeit nuncupative Testaments be valid according to the Law and Custom of that Place For albeit the Custom of the Place may supply the Solemnity of any Writs or Evidents for instructing a Right as Writs made abroad by Nottaries and Tabellions are valid though not done according to the Law of Scotland which requires two Notars and four Witnesses in Writs of importance yet the Custom of those Places cannot constitute any Right of Succession not allowed by the Law of Scotland And therefore William Schaw Factor and Residenter in London having lived and died there in the House of one Mary Lewins who had confirmed in England a nuncupative Testament whereby he had designed her as Executrix and Legatrix and the nearest of Kin of the said William having confirmed themselves Executors to him in Scotland and the competition being betwixt them the Lords preferred the Executors confirmed in Scotland and had no respect to the nuncupative Testament as having no effect by the Law of Scotland January 19. 1665. Schaw contra Lewins 36. The like Solemnities will be sufficient for Codicils and Legacies A nuncupative Legacy within an hundred pounds is probable by Witnesses November 24. 1609. Russel contra July 7. 1629. Wallace contra Mure. Where a greater Legacy left by word restricted to an hundred pounds was found so probable 37. The power of Testing is competent to all Persons who have the use of Reason though Minors having Curators not consenting Wives cled with Husbands without their consent Persons interdicted without consent of the Interdicters but not to Pupils Idiots furious Persons in their Furiosity neither to Bastards not having lawful Issue or testamenti factionem by the Kings Gift as in the former Case Wallace contra Mure. Vide Tit. Confiscation § Bastardry 38. Legacies are either particular or universal general or special Universal Legacies are when the whole Moveables in so far as is in the Defunct's disposal and not left by particular Legacies is legat and so it is legalum per universitatem and like to the Succession of an Heir Special Legacies are where some Individual is left as such a Horse Cloaths c. or such a Sum due by such a Person whereby the Property is stated in the Legatar and at most but the Possession or Custody in the Executor And therefore the Legatar may pursue for Delivery or Payment of the special Legacy against the Havers or Debitors but he must call the Executor that his interest may be preserved least the Debts exhaust even the special Legacy Upon which consideration the Lords sustained not a Pursuit upon a special Legacy leaving a Sum due by such a Person in such a Bond pursued against
the Neices name seing he filled it not up till the granters Sicknesse July 22. 1678. Birnies contra Polmais and Brouns But Death-bed was not found to hinder the recalling of a Disposition made by a Grand-father to his Oye and delivered to a third Party in Leige poustie if it should appear that the delivery was not Simply to the behove of the Oye whereby it became Irrevocable but Conditionally that the Disponer might recal it for eviden ce whereof it was proven by that third Parties Oath That the Defunct on Death-bed called for it and he delivered it and that the Defunct on Death-bed delivered two Blanks for dividing the Right in the first Disposition which he delivered with his said first Disposition to a Nottar And ordered the filling up of the one half to the Heir the other half to a second Son but for further clearing the Partie to whom the first Disposition was first delivered was appointed to be examined what the Defunct exprest when he delivered the first Disposition to him Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter the third Partie not being found to be examined The Lords found that there being nothing proven exprest at the delivery The recalling and the re-delivery did import that the delivery was not Simple to the behove of the Oye making it Irrevocable But that it was Conditional to be delivered to the Oye if the Disponer did not recall it and that his recalling of it for a special effect to divide the same betwixt his Heir and the second Son was effectual both against his Oye to whom he first Disponed and as effectual against his Heir as to the one half albeit the Revocation was onDeath-bed Seing thereby the Heir had no prejudice but benefit being formerly Excluded by the Disposition to the Oye delivered in Liege Poustie January 25. 1677. inter eosdem 30. But onlyFree deeds onDeath-bed are thusReduceable for if there were an equivalent Cause Onerous which was truly Imploy'd upon the Defunct or might affect the Heir it is not to the Heirs Prejudice and so not Reduceable thus the Reason of Death-bed was eleided because the Band quareled was offered to be proven for Furnishing truly Delivered to the Defunct July 13. 1632. Pollock contra Fairholme The like of a Discharge granted by a Bastard after he was Infected of the Plague against the Donatar of the Bastardry November 23. 1609. Marr contra Auchinleck In all these Witnesses are Sustained to prove the Cause Onerous in the write And likewise a Band granted on Death-bed being proven for a Cause Onerous in part viz. Droggs and Service to the Defunct on his Death-bed was sustained pro tanto and Reduced for the rest January 7. 1624. Schaw contra Gray But a Liferent granted to a Wife on Death-bed and a Liferent-Tack of Teinds of the Lands Liferented were not reduced Hope Teinds Lady Dunlap contra Laird Dunlap The reason whereof is observed to have been because the Husband before Sickness was bound to Infeft his Wife in Lands or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem 31. AsDeeds on Death-bed prejudge not the Heir So deeds in Testaments though done in Leige Poustie have no more Effect then on Death-bed And it is not habilis modus by Testament to dispone any Heritable Right December 14. 1664. Colvin contra Colvin Death-bed is not competent by Exception but by Reduction January 11. 1666. Grizell Seatown contra Dundas But in Declaratorie or Petitory Actions as Recognition it is receivable by Exception July 20. 1669. Barcley contra Barcley Or in a Reduction it is competent by Exception or Reply February 3. 1672. Barbara Hoom contra Bryson A third difference is that Successors in Moveables or Executors are not lyable Passive for the Defuncts Debts in Solidum but Heirs are Though they farr exceed the Value of the Inheritance without the benefit of an Inventar And though Craigs Opinion is that Heirs may Renounce even after their Entry if the Heritage appear overburdened The course of Decision since his time hath cleared the Contrary 32. Because Heirs entring cannot Renounce there is Annus deliberandi allowed to them by Law in which they may abstain from entering and Immixing themselves with the Heritage and then they are not conveenable for the Defuncts debt upon charges to enter Heir or otherwise but if they enter or meddle sooner they are lyable This Annus deliberandi is ordinarily accounted a year from the Defuncts Death which was so accounted though during a great part thereof the Heir remained unborn February 7. 1610. Knows contra Menzies But the Contrary was found thereafter that the year was accounted from the Birth of the Posthumus Heir that the benefit of Deliberation might be profitable to his Tutor in his Name Spots Heirs Livingstown contra Fullertown If the Day of Compearance be after the Charge to enter Heir and after the year it will be Susrained June 27. 1667. Dewar contra Paterson In which case it was found that even Actions Real as Reductions 〈◊〉 c. which require no Charge to enter Heir are not Competent within the year of Deliberation because in these the Heir cannot Defend without the Hazard of behaving as Heir 33. Succession in Heritable Rights in Scotland are either by the will of the Fiar or by Law Provistone Hominis or Legis Heirs by the 〈◊〉 of Law are called Heirs of Line as befalling by the Line of Succession appointed and known in Law all other Heirs do Cross or Cut that Line and therefore are called Heirs of Tailzie from the French word 〈◊〉 to Cut whence Craig conceiveth this Tailzied Succession hath been first denominat amongst the French and Normands and thence being brought into England by the Normand Conquest both in Custom and Name hath been Derived to Us Yet it is liker to have come to us Immediatly from France with which we keeped greater Intercourse then with England of Old And our Tailzies at least to Heirs Male are Ancienter than the English which begun but from the Famous Law called the Second Statute of Westminster in the Reign of Edward the First of that Name of the Normand Line Heirs of Tailzie are also called Heirs of Provision which terms are Equiparat both comprehending all Heirs which are not according to the Line or Course of Law and among others Heirs Male and Heirs of Marriage Yet our Stile doth ordinarily distinguish them so that where there is no alteration from the Lineall Heirs Male and where there are severall Substitutions of certain Persons or Lines failling others by the tenor of the Infeftment they are Specially called Heirs of Tailzie but when there is an Alteration of the Lineal Succession yet not Simply to Heirs Male nor to divers Members of Tailzie they retain the common Name of Heirs of Provision as is most ordinar by Contracts of Marriage providing Lands to the Heirs of the Marriage whereby the Heirs Lawfully Procreat betwixt the
litem albeit before Declarator it is sufficient As was found by a Tolerance from the Donatar Nicol. de haereditarits actionibus Cairncross contra Crookshank And by a Warrant from the Donatar July 4. 1665. Mr. Walter Innes contra George Watt. But it is not relevant to alledge That the Defunct died at the Horn and thereby had no Moveables which were become escheat to the King Feb. 7. 1662. Gray contra Dalgarne 14. Vitious Intromission is also restricted to the single value when it is by vertue of a Disposition from the Defunct albeit the Disposition was found null by Reply as done in defraud of Creditors by a Husband to his Wife June 16. 1671. Bonar contra Lady Couper And a Disposition of Moveables with an Instrument of Possession being for a cause onerous granted while the Defunct was on Death-bad though there was no natural Possession till after his Death wassustained to purge Vitious Intromission July 6. 1664. Alexander Brown contra Lawson But a Disposition of Moveables where the disponer retained Possession during his Life was not sustained Nicol. de haereditariis actionibus Strachan cont Scot. The like where the Disposition was to the Defunct's Son's Wife seing the Defunct retained Possession for a considerable time his Son and his Wife being with him in Family June 28. 1632. Dalrymple of Waterside contra Laird of Closeburn So that such Dispositions if the Defunct live long after retenta possessione are not sufficient as in the last two Cases But if the Disposition were shortly before the Defunct's Death that his continuing in Possession would not 〈◊〉 simulation or frand the same would purge the Vitious Intromission at least restrict 〈◊〉 to the single value 15. By the Law and Custom of England Vitious Intromission with a Defunct's Moveables doth only extend to the single value And therefore Intromission being made in England was extended no further here July 26. 1619. Lord Dingwal contra Wanderson 16. Vitious Intromission being penal sapiens naturam delicti is not to be sustained against any as representing the Intrometter when there is no Action intented against him in his own life after which no other can be able to clear the Title of his Intromission with moveableGoods quae transeunt per commercium and so the Defunct might have bought them bona fide July 10. 1666. Cranstoun contra Wilkison And for the same reason Behaving as Heir by Intromission with Heirship-moveable is not sustained after the Intrometter's Death as hath been observed in that Title though there can be less pretence of Commerce in that case Yet though Decreet were not obtained before the Intrometter's Death if Litiscontestation were made against him compearing when it was proper to him to purge his Intromission by any competent Defense if the same were proven after his Death it might overtake his Successors unless the Intromission had been simply referred to his Oath for then dying before he gave his Oath his Successors could not be lyable because he might either have qualified or denyed his Intromission 17. Vitious Intromission is simply excluded by those who acquire by way of Commerce bona fide for a just Price albeit in some Cases Executors may recover Defuncts Goods reivendicatione But where bona fides doth not appear but Collusion or Fraud the buying of Defuncts Goods will not be sustained As was found in the Case of a Party deponing that he bought a Defunct's Goods within ten dayes after the Defunct's Death when he knew there could be no Confirmation of the same or lawful Title thereto albeit he deponed that the Seller had a Disposition from the Defunct but which he did not produce and his Oath was not found to prove it but the Acquisition was found to be a Collusion the Buyer being the Defunct's Goodson pretending to buy from a Stranger Nov. 29. 1679. Irving contra Kilpatrick
Messenger at the Denunciation did make three Oyesses before he read the Letters of Horning that the People might thereby take notice of the Intimation which therefore ought to be with audible voice Which though it be not by any particular Statute yet is requisite by antient Custom and should be exprest in the Execution of all Letters which require to be published at the Mercat Crosses The intent thereof being that the Publication thereof may come to the Ears of the Countrey and be carried by common Fame that all parties concerned may look to their Interest And therefore such Publications at Mercat Crosses and at the Peir of Lieth have by Law and Custom as expedients to make them commonly known 3. Oysses before reading of the Letters and affixing the Coppie of the Letters upon these Publick Places And Horning hath this supper-added that there must be three blasts of the Horn after reading of the Letters But because Executions do not always bear 3. Oysses But generally lawfull Publication The Lords did declare upon the February 15. 1681. That they would sustain no Executions of Messengers done in time coming not bearing three Oysses publick readingof theLetters in a Reduction at the instance of Gordon of Park contra Arthur Forbes upon the want of 3. Oysses which came not to be decyded because the Executions were Improven And an Inhibition bearing only that the Messenger did lawfully inhibite and not bearing three Oysses or the reading of the Letters the Lords found the same null and would not Supplient by Witnesses that these were truely done July 11. 1676. William Stevinson contra James Jnnes But where the Executions did bear that the Messengers did lawfully publish and read Letters of Inhibition which by inspection of the Registers was found to be afrequent Style and not the former Style which was meerly generall The Lords sustained that the three Oysses were truly given Junne 21. 1681. Lundie contra Trotter 9. The Execution must also bear that the Messenger did give three blasts with his Horn And yet a Horning was not found null because it bore not expresly the partie to have been Denunced or three blasts to be given but only generally that the Rebell was Denunced by open Proclamation and put to the Horn January 19. 1611. Sr. Robert Hepburn contra Laird of Nidderie and an Execution was sustained though it bore not three blasts it being proven by the Witnesses insert that these blasts were truely given and the Execution bore orderly Denunced March 4. 1624. Drysdale contra Sornbeg and Lamingloun 10. Sixthly The Execution must bear that the Messenger for more Verification hath affixed his Signet or Stamp and the Stamp must appear if the Executions be recent else it will be null March 6. 1624. Comissar of 〈◊〉 contra So the Execution of a Horning was found null because it mentioned not the Stamping thereof Hope Horning Home contra Pringle of Whitebank Yet the Executions weresustained though they bore not these Words seing they were all written with the Messengers own hand and were Subscribed and Stamped as Hadingtoun observeth but expresseth not the partie February 19. 1611. 11. Seventhly Horning must not only be Execute at the Head Burgh of the Shire where the partie dwells but must be Registrat in the Sheriff-Clerks Register of that Shire within 15. days after Denunciation thereupon Otherwayes the same is null Par. 1579. cap. 75. Where the Clerk is ordained to give an Extract and Registrat it within 24. hours after recept of the Letters And if he refuse it the Charger may Registrat it in the next Sheriff Books or in the Clerk of Register his Books which upon Instruments taken of his refusall is declared sufficient Par. 1579. cap. 75. Wherein the Registration is ordained to be Judicially or before a Notar and four famous Witnesses besides the ordainry Clerk But this part of the Act is rescinded and it is declared that the Registration in the Sheriffs Baillies or Stewarts Books by the Clerk thereof or by the Clerk Register and his Deputs in the Books of Council and Session shall be sufficient in it self Par. 1600. cap. 13. And for this effect there is a general Register of Hornings Relaxations Inhibition Interdictions keeped at Edinburgh and a particular Clerk Deput having the Charge thereof But if the partie live within Stewartrie or Bailliery of Royaltie or Regalitie the horning must be Registrate there in the same manner as other Hornings must be Registrate in the Sheriff Books else it is declared null Par. 1597. cap. 265. But Denunciation against parties who have found securetie to underly the Law and compears not at the day appointed is declored sufficient being at the Crosse of Edinburgh within six days though not at the Head Burgh of the Shire Par. 1592. cap. 126. And likewise Denunciations against parties entring in the place of the Criminal Court with more persons then there Domestick Servants and Procurators are declared valid though Execute only at the Mercat Crosse of the Burgh where the Justice Court sits for the time and Registrat in the Books of Adjurnall Par. 1584. cap. 140. Executions of Horning was also found null because Execute upon the Sabbath day Spots Charge Ribbald Frenchman contra Sr Lewes Lauder but were not found null Because Registrat after the Rebells death being Denunced before December 20. 1626. Laird of Lie contra Executors of Blair 12. Though the Horning be orderly used yet if the Ground or 〈◊〉 whereupon it proceeded be not due or taken away before the Denunciation the Horning is thereby null and reduceable though no Suspension of the Horning was raised before but in this the Officers of State must be called to prevent Collusion Spots Escheat James Dowglas contra Creditors of Wardlaw So a Horning upon Lawborrows was found null by exception because Caution in obedience was found before Denunciation November 29. 1626. Smeitoun contra Spear Yea Horning was reduced because before Denunciation the Charger had accepted a Band in Satisfaction of the ground of the Horning which was found probable by the oath of the Charger against the Donatar Hope Horning Mushet contra Forrester The like where the Charge was Suspended before the Denunciation though the reason of Suspension militated only against a part of the Charge Hope Horning Buckie contra Earl of Erroll But the Rebells Oath or holograph discharges before Denunciation were not respected as presumed Collusive February 10. 1663. Montgomery contra Montgomery and Lauder In this case it was found that Reduction of the Decreet upon Informality not being upon material Justice did not annul the Horning Neither was Horning taken away by compensation by the like Sum due to the partie Denunced equall to that in the Horning not having been actually applyed by Process or Contract before the Denunciation Nor was any warrand required for using the Execution though for a partie living in England and done against a Daughter and her Husband But the having the principal
Band was found sufficient warrand for Registration of it and Execution thereupon And the Denunciation against the Husband was not taken off by dissolution of the Marriage before Declarator December 23. 1673. Thomas Dalmachoy contra Lord Almond 13. Horning though orderily used proceeding only upon generall Letters by Supplication against all and Sundry unlesse it be against a Burgh Colledge or Communitie proceeding not upon a Citation and for a special and certain Dutie the Denunciation thereupon hath no effect as to Escheat or Liferent though Caption usually follow thereupon Par. 1592 cap. 140. Which Act doth declare such Executions null And therefore such a Horning was not found sufficient to debarr a partie as not having personam standi in judicio January 24. 1674. Blair of Glascun contra Blair of Baleid much lesse can these general Letters make Escheat to fall or Annualrent be due yet Caption proceedeth upon it and useth not to be quarrelled 14. Horning is taken off and ceaseth by Relaxation which requireth the same Solemnities of Publication and Registration as Hornings do As is clear by the forcited Acts of Parliament thereanent But it doth only operat to free the Rebel relaxed as to his goods and others acquired after Relaxation February 14. 1635. Lochart contra Mosman December 23. 1673. Thomas Dalmachoy contra Lord Almond It is also ordained that all Copies of Summonds and Letters delivered by the Executer thereof shall be subscribed by him Par. 1592. cap. 139. I have not observed any Exception founded upon this Act which though it expresseth not a nullitie yet ought to be a rule to Messengers especially in Hornings and Inhibitions which may prefer any other more orderly diligence 15. The effect of Horning dulie used and Registrat in manner foresaid is that thereby the whole moveable Goods and Debts of the parties Denunced are Escheat and Confiscat and all that he shal acquire thereafter till he be relaxed Whereupon the Thesaurer used to cause raise Letters of Intromission for uptaking of the Escheat Goods direct to Sheriffs and Messengers And in case they be deforced or the Sheriff not able or willing to Execute the same Lett es will be direct to Noblemen and Barrons within the Shire to Convocat the Leidges in Arms and to make effectuall the former Letters Immediately Par. 1579. cap. 75. But this is long in Desuetude This is also an effect of Horning that the partie Denunced hath not personam standi in Judicio either as Pursuer or as Defender yet the Lords would not hold him as Confest if he appeared and were hindred by the other partie July 12. 1676. Sr. William Purves contra Sharp of Gospetrie The same will hold in any thing requiring the personal presence of the Denunced as byding by a write quarrelled of Falshood For clearing the matter of Escheats it will be necessary to show First what falls under single Escheat 2. How farr the same is burdened or affected with the Denunceds Debts or deeds for the first single Escheat extends to no Heritable Right whether of Land Annualrent or Heritable Band but itcarries the bygones of all these preceeding the Denunciation And there after till year and day July 1. 1626. Halyburton contra Stewart Hope Horning Sr. Hendrie Wardlaw contra William Dick. What Rights are Heritable and what moveable hathbeen shown before Title Real Rights So thatall which is there Moveable except Moveable Bands bearing annualrents falls in the single Escheat and somethings are Moveable in Relation to Escheats which are not Moveable in Relation to the Succession of Airs or Executors As Tacks not being Lyfrent Tacks Par. 1617. chap. 15. It carries also the Office of a Clerk-ship Hope Horning Mr. Hendrie Kinross contra James Drummond And likewise the Jus mariti of a Husband and therewith per consequentiam the Lyfrent right or other right of the Wife belonging to the Husband Jure mariti Spots Escheat Violet Dawling contra William Cochran It carrieth also all casualities befalling to a Rebel Denunced before the Denunciation As the Lifrent Escheat of his Vassals Felrury 13. 1611. Symson contra the Laird of Moncur But if the casuality had fallen to the Superior after the Superiours own Liferent had fallen by his Rebellion year and day it would be carried with the Superiors Liferent Escheat February 26. 1623. Clunie contra Bishop of Dunkell And if the Liferent Escheat or any other casualitie be gifted the gift makes it Moveable and so to fall under the Donatars single Escheat March 10. 1631 Francis Setwart contra the Ladie Samuelstoun And the single Escheat of Husband carrieth their Jus mariti and in consequence the Liferent of their Wives for though the Wifs right be a Liferent which wouldnot fall under single Escheat Yet the Husbands Right Jure mariti is no Liferent for if the Wife die before him his Right ceaseth in his own Life Tacks also fall under single Escheat unlesse they be Life-rent Tacks and Assignations to Life-rent Tacks and other Life-rents have been found to fall under single Escheat because the direct Right is incommunicahle For no Life-renter can put another Life-renter in their place but canonly assign the profits befalling to the Life-renter by the Life-rent Right So that it is no Life-rent in the Assigney but is as the jus mariti in a Husband which is as a Legal assignation Likewise Clauses of Relief in Heritable Bands fall under single Escheat because there is no Heritable Clause adjected to the Clause of Relief but Assignations to Heritable Bands makes them not fall to under single Escheat because the Creditors right is directly Transmitted and Stated in the Assigneys Person The single Escheat of Ministers carries the meliorations of their Manses but the Escheat of an Executor carries no more then what is his own Interest and not the Share of the Wifes Bairns Creditors Legators or nearest of Kin which is Escheat by their own Rebellion only even though the Testament were Execute by Decreets at the Executors instance against the Debitors December 21. 1671. Mr. Arthur Gordon contra Laird of Drum 16. As to the other Question how farr the Denunceds Debts or Deeds affect his Moveables fallen in Escheat it is clear that the Debt contained in the Horning affects the Escheat whether in the hands of the Thesaurer or Donatare Par. 1551. cap. 7. Par. 1579. cap. 75. And likewise all Intrometters with Escheat by Gift Assignation or otherways upon a single Sum monds of Six days Par. 1592. cap. 143. Secondly It is clear that no Assignation Disposition or other Deed done by the Denunced after Denunciation not being for fulfilling an Anterior Obleigment before Denunciation for a Cause onerous to a lawful Creditor can affect the Moveable Goods or Debts of the Denunced But when the Denunciation is upon a Criminal Cause the Escheat takes not only effect from the Denunciation but from the committing of the Fact Therefore a Donatar of Escheat recovered a Sum due to the Rebel though