nothing can be said positively to secure them from Question either by our Law or Custom The said case being not mentioned nor determined by either But it is to be thought and presumed that His Majesties Prerogative being asserted by the Laws foresaid and His Majesties owning that power to Command and Dispense as a part of His Prerogative and they conceiving that it was not their duty to dispute His Majesties Power Succeeding Princes will not think it their interest to be severe against any person for exceeding in Obedience to their Royal Predecessors Prescription IF a Feu-Charter of Kirklands not confirmed by the King or Pope with Seasins thereupon may be a Title to warrand Prescription Temporary Prescriptions as in case of House-Mails Servants Fies Ejections c. If they run against Minors The Vassal retouring his Lands to be in Non-entry Fourscore Years Quaeritur If he may object Prescription quoad the retoured Non-entry Duties Seing after the Years of prescription he confesseth the same to be due Temporalia ad agendum sunt Perpetua ad excipiendum If His Majesties annexed Property does prescrive If Prescription run against these who were Forefaulted by the Usurper Qui non valebant agere Found for the Negative Lauderdale contra Tweeddale That Lauderdale his Father and Good-Sire non valebant agere Because upon his Fathers Resignation Queen Ann was Infeft in Liferent and might have excluded them during her Lifetime and though he might have intented a Declarator yet that being such an Action as could not bring him to possession he was not obliged to intent it This Reason appears not to be without some Question seing if there were a Liferenter and Fiar and the Fiar should not prevail with the Liferenter to join in an Action for interrupting prescription the Fiar should be without remedy if he would not interrupt by Declarator and if a Declarator do interrupt it cannot be said that non valebat agere 2do A Declarator would have brought the Lord Thirlestoun to Civil possession at least so far as it would have been declared that the Queens possession was his and by vertue of the Right thereof he was Fiar And if the Queen would not owne the possession to have been by that Right she should have been forced to remove So that by that Action they might have attained natural possession Before the Act of Parliament 1621. anent Comprysings the Legal ran against Minors which argues that the Temporary Prescriptions of SpuilÈies for House-Mails Removings c. run against Minors If there be a difference betwixt the time of prescription in England and Scotland Whether is prescription inter decisoria Item If Prelates provided before the Act of Parliament 1585. against Dilapidations may notwithstanding thereof set Tacks without hazard Seing the Act seems to militate only as to persons provided thereafter If a Feu-set contrary to the said Act against Dilapidations may be a ground of Prescription Ratio Dubitandi That by the said Act the Patrimony of the Prelates is extra Commercium and is of the nature of the annexed property quod non est alienabile non est praescriptibile Vide Dilapidation in litera D. If in all cases when an Obligement or Interest and Right is in the Defenders Right whereby he bruiks may he alledge Prescription as he cannot do in the case of Reversion there being Eadem Ratio What is the Reason that Reversions Registrate do not prescribe Seing Bonds Registrate do notwithstanding prescrive If a Faculty granted to a Person as v. g. to the Disponer of Lands and a power to Dispone the samen or to Redeem upon a penny doth prescrive being granted apart If Prescription being alledged against a Bond it be Relevant to reply and to offer to prove by the Excipients Oath that to his knowledge the the Debt is due and true and not satisfied If a Reversion be granted only for five Years Quaeritur If in that case it prescribes against Minors Vide de Retractibus Gentilitiis if they prescribe against Minors If a Minor acquire Right to a Comprysing near expired singulari titulo will the Reversion be prorogate and if there be a difference betwixt a Minor succeeding as Heir or otherways Singulari Titulo Prescription against the King THE Act of Parliament 1617. Militateth against the King as to real Actions when the Defender has prescribed a Right by possession founded upon the Rights therein mentioned as appears by the express words and the ground of that Prescrption being not so much odium negligentia non petentis as favor possidentis which is the same as to the King as to another But in that part of the Act anent the prescription of Personal Actions there is no mention of the King and he cannot be said to be negligent and it is declared by Act of Parliament that the negligence of his Officers shall not prejudge him Quaeritur therefore if Prescription in that case be competent against the King Verba semper quandocunque designant temporis infinitatem si in pacto de retrovendendo adjiciatur haec clausula ut quandocunque venditor ejus haeredes velint pretium offerre Praedium recipere possint non obstante triginta annorum praescriptione Jus redimendi semper in perpetuum competit nisi possiderit Emptor pro suo vel contradixerit Reluitioni ab eo enim tempore incipit praescriptio In Contractibus enim nullum verbum debet esse otiosum verba autem quandocunque c. essent otiosa si non operarentur Thes Bes litera I. verbo 5. Je und allwegen p. 423. 424. Princeps potest privato privilegium concedere ut ipse solus in aliqua parte maris aut fluminis publici piscari possit aliosque ne id faciant prohibere Loca publica quae Jure Gentium communia sunt praescribi possunt tanto tempore cujus initii memoria non existat praescriptio enim immemorialis vim habet privilegii seu Tituli potius praesumpta concessio quam praescriptio dicitur praesumptio ex ea exsurgens est Juris de Jure nec admittit probationem in contrarium Jus Flaviatile p. 260. n. 261. Praescriptio impium praesidium Novel 9. Respublica municipium non restituitur adversus praescriptiones temporales quae Jure veteri respuebant restitutionem vide Frisch Tom. 2. Exercitat 2. n. 58. sequent Jure Novel praescribitur contra Rempublicam Civitatem Triginta vel quadraginta ann ibidem n. 63. Praescriptio Conventionalis a Defuncto coepta currit contra Rempublicam quae ei successit Ibidem n. 65. In Praescriptione Jure Civili bona fides requiritur ab initio nec desinet usucapiens acquirere licet mala fides superveniat Jure autem Canonico bona fides requiritur toto tempore Requiritur etiam Titulus id est justa causa possessionis habilis ad transferendum Dominium Res furtivae vi possessae Jure
it will militate against a singular Successor Answer Such Jura Haereditaria which are in rem non Transferuntur nudis pactis sed traditione and by possession which is instar traditionis But if the Servitude be Discontinua as v. g. the leading of Sea-ware which is not done but at a certain time of the Year Quaeritur what shall be done to perfect the Constitution It is thought it may be published by making Intimation thereof to the Tennents and at the Paroch Church and upon the ground and the Granter if need be may be Inhibited Si alicui Jus hauriendi adeundi conoessum est utrumque habet Si tantum hauriendi inest aditus Si tantum adeundi ad fontem inest haustus aliquo enim concesso omne illud sine quo hoc Jure uti nequimus concessum intelligitur Jus Fluviat p. 89. initio Aut vicini aquam hauserunt Jure familiaritatis aut Jure acquisito hoc casu cogi nequeunt ut in fonte mutationem admittant illo possunt Idem p. 90. n. 40. Lords of Session IF the Lords of Session have power to Judge Appellatione remota seing they have the same power which the Lords of Session had formerly It is thought that they have the same power Extensive as to the subject of their Jurisdiction but not Intensive as to the quality foresaid if it be not exprest being ex reservatis quae non transeunt nisi exprimantur Seing Adaequatio by the clause with the same power is to be understood as to the ordinar power belonging to Judicatories and Incorporations qua talia and not as to any Extraordinary Power and Priviledge As if a Burgh should be Erected with the same priviledges belonging to any Burgh within the Kingdom they will not have Right to be Sheriffs within themselves by reason other Burghs have that Right non qua Burga but by a special priviledge And some Lords of Regality do pretend to the Escheats of the Persons within their Regality upon Horning and yet a Right of Regality by the general clause will not cary the same If the Lords of Session be to be considered as Judges only or Magistrates Praetores habentes Imperium in some cases Sheriffs IF Precepts of Sheriffs may be put in Execution by their Officers after their Death Ships IF a Ship being abroad Traditio Instrumentorum to a Buyer viz. of the vendition be sufficient If a Ship be poindable quomodo Solarium SOlarium est vectigal quod a superficiario penditur pro Jure superficiei in solo Jus Fluviat p. 70. n. 15. Sponsalia IF after a solemn Contract of Marriage one of the Parties Marry otherways will that Marriage be lawful even though after Banns upon the said Contract of Marriage Answer Contracts of Marriage and Sponsalia inducunt Jus ad rem as in other personal Contracts and Dispositions anent Lands but not in re sine Traditione which in Marriage is only when sequitur Benedictio in facie Ecclesiae or Concubitus If Sponsalia be consummate and purified per Copulam and a pursuit being intented for Solemnizing the Marriage and Declaring the Issue lawful the Defender die in the interim may the pursuit be transferred in favours of the Wife and Children ad hunc effectum at least that she may have Jus Relictae and they be Heirs and Executors to their Father Eadem est quaestio as to promise and copula Rejecta distinctione Canonistarum in Sponsalia de praesenti de futuro prout illi ista accipiunt quaelibet Sponsalia quibuscunque verbis contracta nihil aliud sunt quam Conventiones de Matrimonio in futurum contrahendo Christenius de Jure Matrimonii Dissert 1. § 3. A modo tamen contrahendi usu hodierno dividi possunt Sponsalia in pura sine adjectione alicujus conditionis Conditionalia quae honesta conditione apposita contrahuntur ut ducam si Pater consenserit illa de praesenti ista de futuro haud male appellantur Ibidem Qui Sponsalia contrahunt nuptias celebrare compelluntur legitimis coercitionibus Contractus Sponsalitius trinundino promulgatur in Ecclesia aut pro Curia Ibidem sent 6. Concubitu purificantur Sponsalia sub conditione statim fit conjugium quia censentur sponsi a conditione recedere nec obest protestatio se non recedere utpote contraria facto Christen de Sponsal quaest 9. Statuta STatuta Ratione Bonorum sui Territorii obligant etiam non subjectos ipsas enim res afficiunt sive a Cive possideantur sive ab Advena Thes Bes lit S. 110. ante finem addit p. 902. Steelbow and Heirship WHether a Roum being set in Tack for certain Years with Steelbow-Goods as Oxen c. will the Steelbow Goods belong to the Heir who has Right to the Tack Or to the Executor Ratio Dubitandi Both the Lands and the Goods are set in the Tack as Fundus Instructus and the Duty is payable in contemplation of both so whoever has Right to the Tack has Right to both the Tack being Jus individuum 2. The Goods are like nativi ascriptitii addicti glebae 3. What is to ly fixed for diverse years cannot be reckoned inter mobilia 4. It were hard to think that a Relict and Bairns should have their Legitim out of Goods that are not in the possession of the Defunct nor would be for diverse years And it would seem That eadem est Ratio as to the setter of the Tack and his Heirs and Executors Pecora dantur in socidam cum animalium casus in Pastorem transfertur qua conventione pecora ferrea effici appellari solent quod fit in multis provinciis Germaniae ubi cum fundo certus numerus ovium vaccarum in feudum dari solet ita ut Vasallus feudo sinito eundem numerum supplere restituere teneatur Besold Thes in verbo Eisern Biehe lit E. p. 224. Strangers See Process against Strangers lit P. ALL Nations are Municipia and the World a great Civitas They have that Relation and necessitude that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sunt and owe Justice to all persons of whatsoever Nation according to the Law of the place where they Contract with respect to that place sibi enim legem dixerunt If Justice be refused datur remedium pig norationis seu Repressaliarum Goods or Debts belonging to Strangers IF Mobilia or Nomina belonging to Strangers v. g. in England should be confirmed here Or if it be sufficient they should be confirmed in England Ratio Dubitandi sequuntur personam On the other part they are a Scotish Subject or Interest Subjects living Abroad A Native Living Abroad and being Popish and going to the Mass where he liveth Quaeritur Whether he Forfaulteth his Estate in Scotland Item If he Intercommune there with persons Forefaulted in Scotland whether he be Lyable as having contraveened the Law of Scotland so that if he have any Estate in
him presently upon the Place and the Debitor nevertheless come away without satisfaction Quid Juris as to that Debt whether it be construed Nomen Anglicum Quid Juris as to English-debts contracted betwixt English-men in England if the Debitor withdraweth to Scotland Answer It is thought that though actor sequitur forum rei and the Law of Scotland has place in such Cases quoad Ordinatoria yet the English over-rule such Cases quoad Decisoria And a Testament proven in England is sufficient Debitum Annuum A Brother having given a Liferent-tack to his Brother of a yearly Duty of Victual out of his Lands to be payed yearly during all the days of his lifetime at Martimass and the Tacks-man having deceased before that Term will he have any part of that years Duty in which he deceaseth And if there be a difference betwixt Debitum annuum Legatum annuum cujus dies cedit anni initio Mr. William Turnbul Minister of Mokerston contra Turnbul of Minto Debitum in Diem WHat course should be taken when the Debt is in Diem and the Term of Payment not come and the Debitors Estate comprised and the Comprising for other Debts like to expire before the Creditor in Diem can have a Decreet and Execution thereupon Sir Robert Sinclair's Daughter Decimae AV Commencement Les dismes n'estoyent le domaine des gens d'eglise et les dons des dismes que les Princes et Seigneurs ont fait aux Moines qui lors n'estoient du nombre des Clercs ont esté faites de leur biens propres Plusieurs payoient les dismes par devotion sans contrainte de ces payments fut faite coustume qui causa obligation qui Engendra action pour contraindre a payer les dismes Grimand de dismes lib. 1. cap. 4. La contrainte de payer dismes primierement N'eut fondement certain sur l'authorité du Magistrat Civil car il ne se trouve aucune constitution pour payement des dismes dans les Loix Imperiales Ibidem Charlemagne fut le premier qui les commanda payer Ibid. Decreets of the Lords of Session WHether the Sentences of the Lords of Session should be considered as Laws and if notwithstanding thereof these who are of another Opinion may in cases occurring thereafter vote according to their own Opinion Deeds both inter Vivos Mortis Causa IF it appear by a Paper in legitima potestate That the Defunct intended to settle his Estate both Heretable and Moveable Whether will the same be valide as to both so that both a Testament and Deed inter vivos may be consistent in one Paper Ratio Dubitandi If at the same time there had been a Paper apart in the same Terms it had been a valid Right as to the Heretable Estate being Delivered And it appears that it were against Reason that it should be invalid because it is in a Paper containing a Testament seing utile per inutile non vitiatur Captain Ross Dependence INhibitions and Arrestments may be upon Dependence of an Action Quaeritur If when two Citations are necessar the Summons with the first Citation thereupon will import a Dependence before the second Citation Destination of Succession A Bond being granted to a Sister by her Brother for Provision and to the Heirs of her Body whilk failÈieing to return to him and his Heirs Whether may she assign it without an Onerous Cause Jean Drummond contra Riccarton her Brother Whether the said Bond be moveable and will fall under Executory Humbie By Contract of Marriage betwixt him and Wariestoun's Daughter being bound to resign for an Infeftment to himself and the Heirs Male of the Marriage Which failÈieing his Heirs Male whatsomever Quaeritur If there be no Heirs Male of the Marriage will his other Heirs Male have action of Implement The said Obligement being only in Favours of the Marriage If as to other Heirs That being only a Destination he may alter it at any time etiam in Lecto in favours of the Heir whatsomever of the Marriage Quod in Favorem introductum est in odium non retorquetur If a Bond were granted by a Person in the same Terms and were lying by him might he alter or destroy it in lecto Desuetudo LEx non dicitur sublata per non usum sed per contrarium usum Baldus ad Tit. ff de Legibus Cod. quae sit longa consuetudo Heiring de Molendinis Quaest 37. N. 38. Dies coeptus IN Favorabilibus Dies coeptus habetur pro completo v. g. Pubes dicitur annum decimumquartum complevisse cum diem ejus ultimum attigit Dilapidation THE Act of Parliament 1585 against Dilapidations provides That Bishops to be provided thereafter should find Caution to leave their Benefice as it was at their Entry and if the Person so provided should do otherways the Tacks and other Deeds should be void Quaritur If they should find Tacks set at their entry Whether they may set new Tacks after the expireing thereof the Benefite being in the same case by the new Tacks as at their Entry Cogitandum Dishabilitation QVaeritur If by our Law the Posterity of Traitors may be disabled and what may be the import of the Dishabilitation and whether etiam Ante-nati may be disabled Power to Dispone notwithstanding the giving away the Right of Fee WHen Lands are disponed reserving a Power to the Disponer to dispone the same in hail or in part as if he were Fiar Quaeritur If he be thereafter forefaulted will the King have the same faculty by the Forfeiture Answer The said Faculty being Personal to the Disponer upon personal Considerations such Reservations being in Rights granted by Parents to their Children to be Tyes upon them that they be dutyful and because Parents may come to be in that condition that they may need and it is just that they have recourse to their own Estate Seing the said Considerations do not militate as to the Fisk the said Faculty cannot be pretended to be transmitted Quid Juris In the Case of a Compriser whether the said Faculty can be comprised Answer That the Debitor having the Faculty foresaid ought to dispone for satisfaction of a just Debt And if he be so unjust as not to satisfy the Debt the Law may and doth dispone and in Law the Compriseing being a Legal Disposition is equivalent as if the Disposition had been made by himself Dispositio collata in arbitrium alterius A Person not being satisfied that his nearest Kinsmen should succed him having a great Estate and they but mean and who he conceived could not represent him creditfully and not being fully resolved who should represent him lest he should be prevented with death did therefore dispone his Estate in Lands to such two Persons most worthy of his Name or upon Mortifications or such Pious Uses as Ten of his Friends named in the Disposition being a Deed inter vivos should think fit Quaeritur If the
consent to which doth cease in this case seing the King is not only Consenter to the Subvassals Right but is Author by the presentation A Person having committed Treason and thereafter his Kinsman to whom he might have succeeded being Deceased Quaeritur If that Defuncts Estate will fall to the King or go to the next Heir Ratio Dubitandi That there seems to be a difference betwixt the case in the fifth Question of the Title Heirs when a person being Appearand Heir and having haereditas delata before he commit Treason the same should fall to the King seing he was Haeres habitu and had jus radicatum in his Person before his Treason and therefore Forefaults the same to the King Whereas in this said other case when the Succession fell the Traitor could not have any Right in his Person being nullus and incapable of Succession So that it cannot be said that he is Legitimus and propinquior haeres A Person holding Lands Ward of the King did give an Infeftment to be holden of himself Blensh and the same being confirmed by the King the granter was thereafter Forefaulted so that the Subvassal did come to hold of the King Quaeritur Whether he will hold as he did formerly or Ward as his immediat Superior did A Person being Appearand Heir both in Land and Heretable Sums but not being served Heir And being Forefaulted after the Decease of his Predecessor Quaeritur If he doth Forefault not only the Lands but the said other Heretable Estate Answer It is thought there is a difference betwixt Lands and any other Heretable Estate seing the Appearand Heir is obliged to enter to his Lands to the Effect the Superiour may have a Vassal Lyable to Service or other Duties so that his not entering is delictum vel quasi and the Lands are in Non-entry And he is in the same case in Relation to the Superiour as if he were entered Whereas as to any other Heretable Estate he needeth not owne or claim the same but if he pleases and he cannot have Right unless the same be settled upon him by a Service and consequently cannot Forefault that which is not his Vide supra in the Question concerning Cesnocks Forefaulture A Band being granted to an Englishman but bearing Registration in Scotland and being granted by a Scotsman If the Person Creditor be guilty of Treason whether it will fall under Forefaulture in England or Scotland Cum essent Sempronio duo filii Primogenitus patre adhuc vivo perduellionis damnatus fuerat postea patre mortuo utroque filio superstite nam perduellis fuga se subduxerat de haereditate patris ambigitur an ad primogenitum ex ejus persona ad Fiscum pertineret Nam Jure civili quod indigno aufertur fisco quaeritur Jure nostro haeres apparens Majestatis damnatus nedum sua sed bona haereditaria praedia quae sua forent si adita esset haereditast amittit ad fiscum transfert Sed distinguendum Et multum interest an filius praemortuo patre crimen postea admiserit an vero ut in casu praedicto ante patris obitum Majestatis reus damnatus sit priori casu cum primogeniti persona adhuc integra sit confestim a morte patris dies cedit haereditas ei delata est adeo ut qui etiam patre superstite haeres fuerat in spe Jam incipit haeres esse habitu spe certa radicata cum libuerit actu aditione haeres futurus si igitur postea maximam capitis diminutionem patiatur haereditas ipsi delata jus succedendi infiscum transit altero vero casu filio ante mortem patris damnato haereditas patris morte nec delata est nec deferri potuit utpote poena servo qui in jure nullus nec personam habeat in qua successionis jus radices agere queat his consequens est fratrem juniorem patri haeredem fore quia absurdum esset patrem a crimine alienum forte tam suis quam familiae meritis commendatum ex delicto filii nihil amittere dum viveret noxa enim caput sequitur morientem autem tum bona tum familiam memoriam perdere nec perduellis aut fisci melior debet esse conditio quod damnatus poenae se substraxerit extra quaestionis aleam est secundogenitum patri haeredem futurum primogenito patri praemortuo 2da In ista specie facti suboritur quaestio viz. si venia data restituatur primogenitus an frater desinit esse haeres Et quidem distinguendum est 1mo An cum restituitur haereditas integra ex asse adita sit fratre ex inquisitione haerede renunciato in omnibus quae patris fuerant praediis investito cum enim terrae in haereditate sunt ante investituram haud censetur esse aditio isto casu restitutio quae est ex gratia nemini nocet nisi concedenti nec adimit jus fratri quaesitum quod rite constitutum quaesitum est haud corruit etsi casus evenerit a quo incipere non poterat 2do Sin restituatur primogenitus haereditate nondum ullatenus adita eo casu quia res adhuc est integra sublato obice per restitutionem qui oberat ne haeres esse possit incipit haeres esse habitu aditione actu haeres erit 3tio Haereditate partim adita partim non fra re in quibusdam terris investito in quibusdam haud sasito novissimo isto casu frater in iis quidem terris in quibus investitus est haereditatem retinebit in reliquis primogenitus haeres erit tantum adeo discrimen est inter jus inchoatum id quod penitus consummatum quaesitum est Multa enim cadunt inter calicem supremaque labra Forisfamiliation QVaeritur If the granting of a Provision to a Child importeth Forisfamiliation so that the Child cannot claim a Bairns part Or if it be to be considered what the subject of the Provision is Viz. Whether it be Heretable or Moveable Seing in the first case it seems that the Provision being out of a different Subject should not exclude from a share of Moveables David Scot Son to Walter Earl of Buccleugh Funeral Charges IF Funeral Expences should be deduced as a Debt off the whole or only off the Deads part If the Funeral Charges for Burying the Husband should affect the whole Moveable Estate or the Deads part Answer It should affect the Deads part seing it is not a Debt contracted during the Communion And the Deads part cannot be used or employed better than to Bury him If the Funeral Charges should be deduced in Relation to the Quot so that the Quot should be only of the Deads part free of the said Debt Answer It is thought it should not be deduced for the reason contained in the preceeding Querie G. Gestio Haeredis IF an Appearand Heir medle by
indirect way is taken away vide Transumpts Quaest 1. hujus Literae Terce A Person having disponed Lands bona fide but being prevented by death before the Buyer was Infeft Quaeritur Whether the Relict will have right to a Terce Ratio Dubitandi The Relict has a Terce of all Lands wherein her Husband died infeft and is not lyable to personal Creditors On the other Part it seemeth against Reason That the Husband having bona fide disponed and the Heir being lyable for the Implement the Relict should be in better case than the Heir who has no part and that the Relict should have only Right to a Terce of Lands undisponed and that there is a difference betwixt a Disposition and other Personal Debts seing a Disposition is Jus ad Rem which cannot be said of other Obligements And these Words That she should have Terce of all wherein the Husband died infeft ought to be understood Civiliter Viz. undisponed Quaeritur If Lands be redeemable Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed specially when the Husband died infeft upon a Compriseing Ratio Dubitandi The Law gives unto Relicts only a Terce of Lands and not of Sums of Money and there is a difference betwixt a Tercer and a Liferenter who is provided to a Liferent of Lands under Wadset A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation Quaeritur If his Relict will have a Terce notwithstanding of the Disposition Ratio Dubitandi That it is hard the Relict should be in better case than the Fiar and Heir from whom the Lands may be evicted by a pursuit for implement And though the Husband died Infeft his Right was resolubile and such as might have been evicted from him 2do A Reversion is but pactum de retrovendendo and in this case there is a full Vendition and yet an order may be used upon a Reversion which will either prevent the Terce or extinguish it Quaeritur If a Reversion though not Registrate will militate against the Relict to prevent her Terce or to Redeem Ratio Dubitandi She is not to be considered as a singular Successor but as having a Right by virtue of and as depending upon her Husbands Right yet standing in his Person whereas he is denuded in favours of a singular Successor It is Indubii Juris That the Husbands Debts that are only personal do not prejudge a Relict of her Terce But Quaeritur whether a Comprysing before her Husbands decease will militate against her And if as to this point there be a Difference betwixt a comprysing whereupon the Superior is charged and whereupon there is no charge Quaeritur If a Disposition whereupon there is Resignation will prejudge a Terce Lands being Wadset for a certain Sum Quaeritur If the Relict of the Creditor will have a Terce both of the Lands and in case of Redemption of the Sum of money If a Wadset be to a Husband only and after his Decease to his Wife And an order be used and declared Quaeritur If she will get a Terce of the money And in that case whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned with the burden of the Relicts Liferent Cogitandum A Lady by her Contract of Marriage being provided to a Liferent and infeft base in satisfaction of her Terce and what else she may pretend Quaeritur If the Superior questioning her Right as base she may have recourse to a Terce as renounced in behalf of the Husband and not of the Superior and the Renunciation being causa data intuitu of her Liferent he cannot debar her from the same and take any advantage by the said Renunciation The Lady Ballencreiff Quid Juris as to a Tercer being Liferenter of a third part Answer The difference betwixt the Liferent and Terce is That the Liferenters Right is anterior and certain but the Terce is posterior and uncertain So that the Fiar may sell the Lands in which case there would be no Terce vide Liferenter qu vltima Territorium TErritorium est universitas agrorum Jurisdictione munita Jus Fluviat p 42. num 513. Testament IF a Testament may be Holograph If a Movable debt be due to an English Man who is deceast must it be confirmed in Scotland è Contra If a Nuncupative Testament in England will have Right to a Debt due in Scotland Ratio Dubitandi it is valid in England mobilia non habent situm sequuntur personam on the other part corpora mobilia nomina though they have not situm as Lands yet they have it so far as being res Scoticae they cannot be transmitted but according to the Law of Scotland Law being rerum Domina Quid Juris if it be offered to be proven by the oath of the nearest of kin that the Defunct did before him and other witnesses above exception Name the pursuer his Executor and universal Legatar will a nuncupative Testament so proven be sustained Answer It is thought it will not Seeing nuncupative Testaments are not in our Law admitted And it is de forma that they should be in Scriptis Quaeritur If a Testament may be sustained by way of Instrument Answer an Instrument under a Notars hand being but the assertion of a Notar is not considered as Scriptum which requires the Subscription of the party himself or in subsidium by Notars before Witnesses de ejus mandato Quaeritur If one Notar subscribing for the Testator be sufficient in Testaments Answer Affirmative in respect of the great favour of last wills and oftentimes there is not copia Notariorum Ministers by Act of Parliament cannot be Notars but in the case of Testaments Quaeritur If eo ipso that they are Ministers they may be Notars in Testaments Or if they must be admitted Notars Answer Cogitandum Quae Ratio That a Testament made in France or Holland according to the custom there which is different from ours should be sustained in Scotland as to any Scots interest falling under the same If a Minor having Curators may dispose of his Estate by Testament without the Curators consent A Minor of thirteen Years or there about having made a Testament and named the person with whom he was boarded and bred in Family his Executor and universal Legatar without the knowledge or consent of any of his Friends Quaeritur whether the said Testament may be questioned upon Circumvention without qualifying any other circumstance but that it is Dolus in re ipsa to elicite from a person of that Age a Right to all his Moveable Estate in defraud of his friends Answer It is Casus arbitrarius and much will depend upon circumstances if the Defunct had no Relation to the Executor and if the Executor did suggest that the Defunct should make a Testament and employed the Writer and did inform the