lay so much marked upon the Precept received in name of Composition Earl of Lauderdail contra Tennents of Swintoun Ianuary 7. 1662. EArl of Lauderdail as having Right to the Forefaulture of the Barony of Swintoun pursues the Tennents for Maills and Duties George Livingstou one of them alleadges that he must be assoilzied from one Years Dutie because he offers him to prove That it is the Custom of the Barony of Swintoun at least of a distinct Quarter thereof That the Tennents do always at their entry pay half a years Rent and are free of Rent at the Term they remove and so do all a long pay a Year at the least half a Year before the hand and subsumes that he has payed accordingly to Swintoun himself for a Terms Maill due for the Crop which is after the pursuers Right The Pursuer alleadged non Relâ—â—at against him a singular Successor or against the KING his Author because that Partie that hath Right to the Land hath Right to the Fruits and so to the Rents which is payable for the fruits which were extent upon the Land or growand after that Parties Rightâ— and no payment before the hand can liberat the Possessor from the Pursuite of a Singular Successor Therefore it hath been frequently found that payment before the hand is not Relevant against an Appryzer yea even against an Arrester so that the KING and his Donatar since their Right was established and known cannot be excluded by payment before the hand to a partie who had no Right to the Land or to the Fruits that Year otherwayes both the KING and Creditors might be defrauded by Fore-maills or by Tacks appointing the Fore-mail to be payed the first Term whatsoever length the Tack be Secondly Any such alleadgances were only probable scripto vel juramenio The Defender answered that the Case here is not like the Fore-maills instanced because every Year is payed within it self and so the first Year the half at the beginning thereof and the half at the middle thereof and subsequent Years conform which must be sufficient to the Tennent otherways Tennents paying at Whitsonday and Martinmess should not be liberat because the whole Year is not run out or a Tennent paying his Ferms at Candlesmass should not be secure against Singular Possessors for the profit of Grasse thereof till Whitsonday The Lords found the Defense Relevant and the Custome of the Barony to be proven by Witnesses and likewise the payment of the Dutie in so far as in Victual and also for the money not exceeding an hundred pounds Termlie Iames Stewart contra Feuars of Aberbadenoch Ianuary 8. 1662. JAmes Stewart as being Heritably infeft in the Milne of Aberbadenoch pursues the Feuars of the Barony for abstract Multures of their Corns growing within the Barony or which tholed Fire and Water within the same The Defenders alleadged absolvitor because they are Infeft in their Lands feu of the KING long before the Pursuers Infeftment which Infeftment bears cum Molendiuis Multuris in the tenendas The Pursuer Replyed that albeit that Clause were sufficient Liberation amongst Subjects yet this is a Milne of the KINGS Propertie whereunto Thirlage is sufficently Constitute by long Possession of coming to the Milne and paying in Towns Multures and Services as is Craig's opinion and hath been so found by the Lords February 5. one thousand six hundred thirty five Dog contra Mushet The Defender answered That albeit Thirlage to the KINGS Milnes may be Constitute without Writ yet cannot take away an expresse Exemption granted by the KING The Lords Repelled the Defense in respect of the Reply because they thoughâ— that this Clause being but in the tenendas past of Course and when Sigâ—aâ—â—â—â— are past the KINGS hand or Exchequar's they bear only tenâ—ndas c. without expressing the Particular Clause which is afterwards extended at the Seals The Defenders alleadged further absolvitor from the Multure of the Teind because that was not Thirled nor had the KING any Right thereto when he granted the Infeftment of the Milne The Pursuer Replyed the Defense ought to be Repelled in respect of the long Possession in Molâ—ndo Regio because the Defenders and their Tennents past fourty years payed Multures of all their Corns promiscuously without exception of Teind likeas there are several Decreets produced for abstract Multures of all the Corns without exception The Defender answered That the Reply non Relevat for albeit long Possession may make a Thirlage of the KINGS own Baronie yet that cannot be extended to other mens Rights of their Lands and Teinds which cannot be Thirled without their own Consent or Decreets against themselves called nor do the Decreets bear Teind per expressum The Lords found the Defeuse Relevant notwithstanding of the Reply except such Teinds that thole Fire and Water within the Barony and likewise sâ—staiâ—â—ed the Defense for the Corns eâ—ten by the Defenders upon the Ground in the Labouring c. Earl of Murray contra Laird of Grant January 9. 1662. THE Earl of Murray Pursues the Laird of Grant to Re-dispone him certain Lands which the Earls Father had Disponed to the Defender and had taken his Back-bond that if the Earls Friends should find it prejudicial to the Earl then upon payment of 2800. merks precisely at Whitsonday he should Re-dispone ita est the Earls Friends by a Testificat produced found the Bargain to his loss therefore he offered the sum to the Defender in his own House which he refused and now offers to Re-produce it cum omni causa The Defender alleadged Absolvitor First Because the Back-bond is pactum de retro vendendo And so a Reversion which is strictissimi juris and not to be extended beyond the express Terms thereof which are that if Iames Earl of Murray should re-pay the Sum at Whitsonday 1653. precisely the Defender should Re-dispone But there is no mention of the Earlsâ— Heirs and so cannot extend to this Earl though he were Heir as he was not served Heir the time of the offer The Pursuer answered that when Reversions are meaned to be Personal and not to be extended to Heirs they do bear That if the Reverser in his own time or at any time during his life c. or some such Expression but there is nothing such here and the Pursuer was Retoured Heir to his Father who died shortly before the Term of Redemption and having used all Diligence he cannot be excluded by such an accident which he could not help The Lords Repelled both the Defenses albeit there was only an offer without Consignation seeing the Back-bond did not bear Premonition or Consignation but only payment which the Pursuer now offered Baird contra Baird Eodem die BAird in Saint Andrews having taken the Gift of his Brothers Escheat upon his Adultery Pursues Declarator thereupon The Defender alleadged no Processes till the Crime were Cognosced in the Criminal Court or at least he were declared Fugitive and
instruct the Protestation The Lords Repelled the Defense in respect of the absence of the Register and the oldness of the Horning Achinbeck contra Mccleud Eodem die IN an Improbation at the Instance of the Laird of Achinbeck against Mccleud The Lords found that the Improbation behoved to be continued albeit the samine had an ordinar priviledge to pass upon six dayes for the first Summonds past of course periculo penitentis Acheson contra Earl of Errol Eodem die ACheson pursues the Earl of Errol as presenting his Father to pay a Debt wherein his Father was Cautioner for the Earl of Mar and for instructing thereof produced the Extract of a Bond Registrate by consent in the Books of Session The Defender alleadged no Processe against him because the Bond was not Registrat by any Procurator for his Father because he was Dead before the Registration and so cannot prove against him neither being a principal Writ Subscribed by his hand nor being a Decreet of Registration by consent of his Procurator nor upon Citation The Pursuer alleadged that it was an authentick Evident and bare expresly Sic subscribitur Errol and seing by Law and Custom the Pursuer was necessitat to leave the Principal at the Register when the Registrat the same and that the Registers are now lost without his fault The Lords refused to sustain the Extract against the Earl of Errol but yet would not put the Party to an Action of proving the Tenor but would receive Adminiâ—les to instruct that Earl was Cautioner and therefore ex officio ordained the other Subscribers of the Bond or any other person that could be adduced for instructing the Truth to be required ex officio Thomas Crawford contra Earl of Murray February 8. 1662. THomas Crawford as Executor Creditor Confirmed to Umquhil Robert Ingâ—is as Assigney by his Relict for satisfaction of her Contract of Marriage pursues the Earl of Murray for payment of the Sums Confirmed addebted by him to the said umquhil Robert The Defender alleadged compensation because he had Assignation to a Debt due by the said umquhil Robert which as it would have been relevant against Robert himself so must it be against his Executor The Pursuer replyed First non relevat unless the Assignation had been Intimat before the Confirmation but an Executor Creditor having done Diligence by Confirmation it is not in the power of any of the Defuncts Debitors by taking Assignation from any of his Creditors to prefer that Creditor to any other Creditor which is no ways legittimus modus preferendi But the Creditors must be preferred only according to their Diligence Secondly This Pursuit being for Implement of the Relicts Contract of Marriage and pursued to their behove hath by our Law and Custome preference to all other personal Creditors though having done more Diligence The Lords found either of these two Replys Relevant to elide the Defense albeit the Assignation was before any Pursuit moved upon the Pursuers Confirmation Lord Torphichan contra Eodem die THe Lord Torphichan and certain of his Feuars pursue a Reduction of a Decreet of the Sheriff whereby he set down Marches betwixt their Lands and others upon this Ground that he did not proceed by an Inquest conform to the Act of Parliament but by Witnesses Secondly That he as Superiour was not Called Thirdly That the Sheriff had unwarrantably Sustained the setting down of Marches foamerly by Arbiters to be proven by Witnesses The Defenders answered the first Reason was not objected and the Defenders Compearance it was competent and omitted To the second the Superour could have no Detriment To the third that the setting down of March-stones being a palpable Fact might be proven by Witnesses whether done by the Parties themselves or by Friends chosen in their presence their being neither Decreet-arbitral nor Submission in Writ The Lords Repelled the Reasons in respect of the Answer and declared that if the Land fell in the Superiours hands by Recognition Non-entry or otherwise The Decreet should not prejudge him if he were not Called Ramsay of Torbanie contra Mcclellane February 11. 1662. DAvid Ramsay of Torbanie having raised Suspension and Reduction of a Decreet against him at the Iâ—stanâ—e of Thomas Mcclellane in Anno 1658. Insists upon this Reason that he being pursued as Heir to his Father at the Instance of Thomas Mcclellane he proponed this Relevant Defense absolvitor because the Bond pursued upon was granted by his Father after he was Interdicted without consent of the Interdictors and so could not affect the Person Interdicted Heir albeit he had succeeded in his Estate The Defender answered that the said alleadgence was justly Repelled in respect of this relevant Reply that the Interdiction hath no effect as to Moveables and Personal Execution neither as to any other Lands then such as lay in the Shires or Jurisdictions where the Interdiction was puplished and Registrat conform to the Act of Parliament ita est this Interdiction was published and Registrate only at Linlithgow and therefore if the Defender hath succeeded to any Lands not lying in Linlithgow Shire or if he hath medled with Heirship Moveable or be vitious Intromettor with his Fathers Moveables he is lyable for this Sum albeit after the Interdiction ita est he succeeded to Lands in the Stewartry of Kirkcudburgh and Moveables c. and therefore the Defense was justly Repelled The Lords found the Decreet just and therefore Repelled the Reasons of Suspension and Reduction Bells contra Wilkie February 12. 1662. GRissel and Bells raise a Reduction against Iames Wilkie of a Decreet obtained at his Instance against them in Anno 1659. whereby the said Iames Wilkie being Executor Confirmed to his Mother who was one of the Sisters and Executors of umquhil Patrick Bell their Brother in which Confirmation the said Iames gave up the third of the said Patricks Goods and thereupon obtained Decreet against these Pursuers as the two surviving Executors to pay to the said Iames his Mothers third Part of her Brothers Means The Reason of Reduction was that the Decreet was unjust and contrair to the Law and Custom of this Kingdom whereby there is no right of Representation in Moveables as in Heretage neither doth the Confirmation of the Executors establish in the Executors a compleat Right untill the Testament be execute either by obtaining payment or Decreet and if the Executor die before Execution the Right ceases and is not Transmitted to the Executors Executor but remains in bonis defuncti of the first Defunct and therefore Executors ad non Executa must be confirmed to the first Defunct which being a constant and unquestionable custome one of the three Executors deceasing before Executing the Testament her Right fully ceases and both the Office of Executrie and Benefit accresâ—es to the surviving Sisters as if the deceased Sister had never been Confirmed Executrix The Defender in the Reduction Answered That this Reason was most justly Repelled because albeit it be true
with the Kings Advocats concurse The Defender answered that the Advocats concurse was but ex stilo curiae and he could make no concurse sufficient for any Improbation and Reduction without the Kings special order The Lords found the Defense Relevant and Assoilzied at which time it was remembred that Sir Thomas Hope insisting in an Improbation of his Good-son the same was not Sustained because it wanted the Kings expresse Order Town of Cowper contra Town of Kinnothy Eodem die THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade They Suspend and alleadge that they have the Priviledge of Burgh of Barony in keeping Hostlers and selling Wine The Charger answered that selling of Wine is one of their chiefest and expresse Priviledges The Lords considering that this dipped upon the Controversie betwixt Burgh Royal and Burgh of Barony which has remained undecided these thirty years would not Discusse this particular but found the Letters orderly proceeded in general ay and while the Defenders found Caution to desist from Merchant Trade without determining how far that reached Moffet contra Black Eodem die THere being a Bargain betwixt the said Moffet and Black for some Packs of Plaids by which it was agreed that the buyer for satisfaction of the price should give Assignation to certain Bonds exprest but there was no mention what Warrandice At the Discussing of the Cause the Seller craved absolute Warrandice and alleadged that seing it was not Communed that it should be a restricted Warrandice it behoved to be an Absolute being for a Cause onerous and for the price of the Goods 2ly Seing the Agreement required an Assignation in Writ to Bonds the Buyer might re integra resile seing neither the Plaids nor Bonds were Delivered The Lords found that thē Buyer who insisted behoved either to give absolute Warrandice that the Bond was not only due but should be effectual and the Creditor solvendo otherways they suffered the Seller to Resile especially seing the Bargain was not made first by words Absolute for such a price and afterwards that it had been agreed to give such Bonds for that price In which case the Bargain though verbal would have stood Alexander Falconer contra Mr. Iohn Dowgal Eodem die ALexander Falconer pursues Mr. Iohn Dowgal for payment of 1000. merks left in Legacy by umquhil Iohn Dowgal by a special Legacy of a Bond adebted by the Earl of Murray whereupon he conveens the Earl as Debitor and Mr. Iohn Dowgal as Executor for his Interest to pay the special Legacy The Exceutor alleadged that the sum belonged to him because he had Assignation thereto from the Defunct before the Legacy The Pursuer Answered that hoc dato there was sufficiency of Free-goods to make up this Legacy and albeit it had been legatum rei alienae yet being done by the Testator scienter who cannot be presumed to be ignorant of his own Assignation lately made before it must be satisfied out of the rest of the Free-Goods Which the Lords found Relevant Duke and Dutches of Hamiltoun contra Scots Eodem die DUke and Dutches of Hamiltoun being Charged for payment of a Sum due to umquhil Sir William Scot of Clerkingtoun and assigned by him to his four Children alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents as should be found just not exceeding eight years and therefore there could be no Sentence against him as to that till the Commission had decyded The Pursuers answered that these Annualrents were not due for the years during the time the Duke was Forefault by the English which ended in Anno. 1656. and they insist but for the Annualrents since that year It 's answered for the Duke that albeit he had payed many of these years Annualrents by force of Law then standing yet that could not hinder the Deduction but that he would have Repetition or Deduction in subsequent years The Pursuers alleadged he behoved to seek the Heir for Repetition and could not deduce from them The Lords in respect of the Commission would not Decide nor Discuss the Alleadgence anent the years Annualrent but Superceeded to give Answer till the Commission had determined even till seven years after the Forefaulture to make up these that was payed before In this Process compearence was made for Sir Laurence Scot the Heir and Executor Dative who alleadged that there was 2000. merks of the Sum belonged to him because his Fathers Assignation to the Children contained an express Division of their shares which was so much less then the hail Sum Assigned The Children answered they opponed their Assignation which bare expresly an Assignation to the hail Sum and Bond it self and albeit the Division was short it was but a mistake of the Defunct and cannot prejudge the Assigneys Which the Lords found Relevant George Melvil contra Mr. Thomas Ferguson Iune 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment after the Mothers Decease The Defender alleadged◠Absolvitor because the Defunct was his own Mother and he had no means of his own and it must be presumed that she Entertained him free out of her Maternal Affection and that his Step-Father did the same after he had Married his Mother The Lords sustained the first part of the Defense but not the second anent the Step-father after the Mothers decease Alexander Allan contra Mr. John Colzier Eodem die ALexander Allan pursues Mr. Iohn Colzier to pay a sum of ninety two pounds adebted for the Defenders Mother and that upon the Defenders Missive Letter by which he oblieged him to pay the same The Defender answered absolvitor because by the missive produced he offered him to become the Pursuers Debitor for the sum due by his Mother being about ninety two pounds but by a Postcript requires the Pursuer to Intimat to him or his Friends at Falkland whether he accepted or not which he did not then till after the Defenders Mothers Death and so it being a Conditional offer not accepted is not binding Which the Lords found Relevant and Assoilzied Cauhame contra Adamson Eodem die THomas Cauhame having Appryzed a Tenement in Dumbar from Ioseph Iohnstoun pursues Iames Adamson to remove therefrom who alleadged Absolvitor because this Apprizer could be in no better case then Iohnstoun from whom he Appryzed whose Right is affected with this provision that he should pay 600. pounds to any person his Author pleased to nominat Ita est he hath Assigned the Right to the Defender so that it is a real Burden affecting the Land even against this singular Successor and included in his Authors Infeftment The pursuer answered that albeit it be in the Infeftmen yet it is no part of the Infeftment or real Right but expresly an obliegment to pay without any Clause Irritant or without declaring that the Disponers Infeftment should stand valid as to the Right of that Sum. The
was Assoilzied because he had no superplus in his hand She now pursues the Earl of Northesk as Heir to his Father to Deliver the first Bond of Corroboration transferred by his Father whereby Morphie was bound to pay the Debt simply without preference of his own Debt or otherways that Northesk should pay the Damnage and Interest which is the Debt it self The Defender alleadged Absolvitor because by the Transaction his Father was not obliged to Deliver the first Bond of Corroboration Likeas the Translation bears the second Bond of Corroboration Delivered so that the Pursuer has aequiesced therein and albeit the Stile of the Translation bears for Sums of Money yet it is clear thereby that it is but a retrocession of the Pursuers to their own Right which they themselves had Assigned which doth presume that Eathie was but intrusted and seing he has reponed them in better condition than they were by the second Bond of Corroboration he cannot be obliged to Deliver the first Bond which Morphie freely granted as a favour to Eathie unless it did appear such a Bond was and that Eathie had fraudfully put it away whereanent he is content to Depone so that the transferring the first Bond must only import if any such Bond was the time of the Translation which would not oblige Eathie to Deliver it unless he had it much less to pay the Sum pro damno interesse 2dly Eathie having accepted the second Bond of Corroboration with a limitation of preferring himself it qualifies the first Bond of Corroboration so that though the Pursuer had it it could operate nothing more nor the second and so he has no Damnage The Pursuer answered that Eathie having transferred the first Bond of Corroboration granted to himself hoc ipso he is obliged to Deliver the same though the Translation expresly bear not an obligement to Deliver quod inest neither can Eathie pretend that there was not such a Bond of Corroboration seing the Translation acknowledges that it was granted to himself neither doth it appear that the Translation was in Trust seing it bears expresly that it is granted for Sums of Money and although it had been in Trust Eathie having acknowledged that Morphie granted a Bond of Corroboration to pay the Sum simply it was contrare to his Trust either to give back that Bond or to qualifie it 2dly The second Bond of Corroboration cannot restrict the first because it bears expresly in Corroboration thereof and but derogation thereto The Lords Sustained the Summons and Repelled the Desenses and found that the Translation in terms as aforesaid did import an obligement to Deliver the first Bond of Corroboration or otherwise to pay the Debt as Damnage and Interest seing Morphie was Assoilzied from the second Bond of Corroboration Eleis of South-side contra Carsse Iune 28. 1670. MAster Richard Carsse of Fordel having granted a Bond of 4000. Merks to his Sister in Liferent and after her Decease to her Daughter she Assigns the same to Iames Eleis her Brother who now pursues Charles Carsse as Heir to Doctor Carsse who behaved himself as Heir to Mr. Richard Carsse the Debitor in so far as he Intrometted with the Charter Chist and gave a Receipt thereof to Arnistoun bearing that he as Heir to Mr. Richard Carsse had Received his Charter Chist and all the Writs and Evidences belonging to the House of Fordel which Charter Chist he keeped two years and Died it being in his Possession likeas he raised Breevs to Serve himself Heir and Subscribed a Revocation of all Deeds done by Mr. Richard in his Minority which is Registrat The Defender alleadged the condescendencies are no ways Relevant for as to the Charter Chist as he might have pursued Arnistoun to produce it for inspection ad deliberandum so he might Receive it from Arnistoun voluntarly for that same effect which cannot import behaviour unlesse he had made use of some of the Writs belonging to him as Heir and this being an odious universal passive Title any probable excuse ought to liberat especially this Doctor who was a Doctor of Divinity Reciding in England and ignorant of the Law of Scotland and who never enjoyed the least benefite of Mr. Richards Estate and the Defender was content to restore the Charter Chist re integra and to instruct by the Oaths of the Friends Consenters in his Discharge that there was nothing wanting but it was in the same case he Received it as for the taking out of Breevs albeit it signified the Doctors purpose to have been Heir yet behaviour must include an Act of immixtion or medling with the Heretage and animus adeundi as having no other Title or intent but as Heir and as for the Revocation it is a null Act operative of nothing but for Reduction which was not Intented and is no medling with the Heretage The Pursuer answered that there could be no more palpable and unquestionable immixtion then by the Receipt of the Defuncts whole Writs and Evidences and that without so much as making an Inventar thereof to have been Subscribed by the Haver of the Charter Chist and him neither has he qualified his Receipt so as that he might Deliberat but bears him as appearand Heir to have Received the same simply likeas he detained the same two years and as to his Ignorance Ignorantia juris nâ—minem excusat and the Pursuer is in this also favourable that this Bond is a Provision granted to Mr. Richards Sister and Heir of Line and the Doctor and this Defender were but Heirs of Tailzy of a further Degree The Lords found the condescendence Relevant conform to the Receipt of the Tenor foresaid and the retention of the Charter Chist without Inventar so long and whereas it was moved amongst the Lords that they had oftimes refused vitious Intromission against any Representing the Intrometter unless Sentence or Pursuit had been against the Intrometters in their own Life whether that should be extended to behaviour as Heir where there was no Pursuit against the Behaver in his own Life but the Behaviour being so considerable and universal with all the Evidents without Inventar it did not take with the Lords neither did the Party plead it but the Lords did not find that the taking out of Breevs or the Revocation Imported Behaviour Greigs contra Iames Weems Iune 30. 1670. BY Contract of Marriage betwixt Iames Weems and umquhile Iudith Nairn It was agreed that the Means and the Estate of either Party contained in an Inventar of the date of the Contract should return to either Party failzying Bairns of the Marriage and should not be under communion Thereafter the Wife provides a Daughter of a former Marriage to a part of her Means in the Inventar with her Husbands consent By which Contract it is provided that in case the Marriage dissolve within year and day or in case at any time thereafter there being no Children the Tocher should return to the said Iudith Nairn And