THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with 〈…〉 It hath been looked upon as the priviledge of Judgesâ— to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâ—eth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
of Selkirk â— 15 Feb. 1668 Harlay con Hume 18 Iuly 1671 Harper con Hume 14 Ianuary 1662 Harper con Hamilton 29 Iuly 1662 Harper con Vassals 25 Iuly 1666 Harrowar con Haitly 13 Iune 1667 Hay con Hume 24 Iune 1662 Hay con Seaton 28 Iune 1662 Hay con Mâ—rison 17 Feb. 1663 Hay con Corstorphin 19 Iune 1663 Hay con Nicolson 16 Iuly 1663 Hay con Collector of the vacand Stipends 17 Iune 1664 Hay con Magâ—strats of Elgin 23 Novemb. 1664 Hay con Littleâ— Iohn 16 Feb. 1666 Hay con Magâ—strats of Elgin 12 Iune 1666 Hay con Magistrats of Elgin 5 Iuly 1666 Hay con Dowglas 10 Iuly 1666 Hay con Little-Iohn 14 Decemb. 1666 Hay of Strouie con Feâ—ars 22 Iune 1667 Hay con Drummond and Hepburn 26 Novemb. 1667 Hay con Town of Peebles 20 Ianuary 1669 Hay con Town of Peebles 19 Feb. 1669 Doctor Hay con Iameson 8 Iune 1670 Hay con Magistrats of Elgin 18 Iune 1670 Henrison con L. Ludwharne 22 Decemb. 1666 Henryson con L. Ludwharne 4 Ianuary 1667 Henryson con Henryson 31 Ianuary 1667 Henryson con Henryson 14 Novemb. 1667 Henryson con Birnâ—e 27 Feb. 1663 Henryson con Anderson 18 Novemb. 1669 Hepburn con Hamiltoun 12 Decemb. 1661 Hepburn con Hepburn 22 Ianuary 1662 Hepburn con Hepburn 25 Feb. 1663 Hepburn con Nisoet 16 Feb. 1665 Heretors of Don con Town of Aberdeen 26 Ianuary 1665 Heretors of the Milne of Keithick con Fewars 29 June 1665 Heretors of Don con Town of Aberdeen 29 Iuly 1665 Heretors of Johns-milne con Fewars 9 Feb. 1666 Heriots con Fleming Messenger and his Cautioners 19 Ianuary 1666 Heriot con â— Town of Edinburgh 25 June 1668 Hill con Maxwel 5 Feb. 1663 Hill con Maxwells 5 Decemb. 1665 Hogg con Hogg 2 Ianuary 1667 Hogg and others con Countess of Hume 3 July 1667 Hogg con Countess of Hume 10 Decemb. 1667 Hogg con Countess of Hume 10 Decemb. 1667 Humes con Bonnar 14 Decemb. 1661 Hume con Pringle 3 January 1662 Hume con 10 June 1665 Hume con the Tennents of Kello and Home 13 June 1666 1666 E. of Hume con Wodsetters 5 Iuly 1666 Dame Margaret Hume con Crawsoord of Kerse 10 July 1666 Hume con Creditors of Kâ—llo and Hume 12 Decemb. 1666 Hume con Tennents of Kello and Hume 24 Ianuary 1667 Countess of Hume con Tennents of Alcambus and Hogg 5 Feb. 1667 Hume con Creditors of Kello 28 Iune 1667 Hume and others con Hume 6 July 1667 Hume con Tennents of Kello 23 July 1667 Hume con Seaton of Meinzles 13 Ianuary 1669 Hume con E. Hume 14 Iuly 1670 Hume con Scoâ— 7 Feb. 1671 Hume con Lo. Justâ—ce Clerk 28 June 1671 Hume con Lo. Justice Clerk 4 July 1671 â— Hume con L. Ryslaw 18 Iuly 1671 Hospital of Glasgow con Campbel 19 July 1664 Howison con Cockburn 17 Novemb. 166â— Hâ—nter con Wilsons 13 Decemb. 1667 Hâ—nter con Creditors of Iohn Peter 11 June 1670 Marquess of Hunâ—ly con Gordon of Lesmore 22 〈◊〉 1665 Hutcheson con E. Cassals 3 Decemb. 1664 Hutcheson con Dickson 6 Ianuary 1665 JAck con Fiddes 24 Iuly 1661 Iack con Pollock and Rutherfoord 23 Feb. 1665 Jack con Movat 13 Iune 1666 Iack con Iack 15 Iuly 1669 Jack con Borthwick 2 Feb. 1670 Jaffray con Iaffray 4 Decemb. 1669 Jameson con Mcclied 3 Decemb. 1661 Ierdin of Applegirth con Iohnstoun of Lokerbie 24 Feb. 1670 Inglis con Hogg 22 Decemb. 1664 Inglis con L. Balâ—our 25 Iune 1668 Innes con Wilson 4 July 1665 Innes con Innes 5 January 16â—0 Johnstoun con Applegirth 7 Feb. 1662 Johnstoun of Sheenes con Broun 14 Iuly 1665 Iohnstoun con Mcgreegers 19 Iuly 1665 Iohnstoun con Tennents of Achincorse 22 Iuly 1665 Iohnstoun con Iohnstoun 21 Feb. 1667 Johnstoun con Cunningham 19 June 1667 Johnstoun con Sir Charles Erskine 6 Feb. 1668 Johnstoun con Paroâ—hioners of Hodonie 18 Iuly 1668 Iohnstoun of Sheenes con Arâ—old 22 Iuly 1668 Johnstoun con Sir Charles Erskine Lord Lyon 19 January 1669 Irwing con Mccartney 30 January 1662 Irwing con Strachan 24 Iune 1665 Iurgan con Capt. Logan 23 Iuly 1667 Iustice con Stirling 23 Ianuary 1668 Lo. Justice Clerk and Sir Alexander his Son con E. Hume 15 Iune 1670 Lo. Iustice Clerk con Fairholme 23 Feb. 1671 K Sir Iohn Kâ—â—th con Sir George Johnstoun 28 July 1671 Kello con Pâ—xtoun 3 July 1662 Kello con Pringle 31 January 1665 Kello con Kennier 5 January 1671 Kennedy con Hutcheson 8 July 1664 Kennedy con Weir 23 Feb. 166â— Kennedy con Agnew of Lochnaw 27 Iuly 166â— Kennedy and Muâ—e con Jaffray 24 June 1669 Kennedy con Kennedy of Cullen 8 Iuly 1670 Kennedy con Cunninghame and Wallace 12 July 1670 Ker con Parochâ—oners of Carriden 26 July 1661 Ker con Ker of Fairniâ—lie and others 9 July 1662 Ker con Hunter and Tennents of Cambo 8 Fâ—b 1666 Ker con Children of Wolmet 25 Feb. 1667 Ker con Ker 18 July 1667 Ker con Ker 5 Feb. 1668 Ker of Cavers and Scot of Golden-berrit Supplicants 6 January 1670 Ker con Downie 7 January 1670 Ker con Nicolson 28 January 1671 Kidd con Dickson 29 June 1666 L. Kilbirnie con Heiâ—s of Tailzle of Kilbirnie and Schaw of Greenock 20 January 1669 Lady Kilbocho con the L. of Kilbocho 20 Decemb. 166â— Kilchattans Credâ—tors con Lady 16 January 1663 Kincaid con L. Fenzies 26 Feb. 1662 E. Kincairn con L Rossyth 24 Feb. 1669 E. Kincairn con L. Pittarâ— 3 Feb. 1670 King's Advocat con E Mortoun 25 Feb. 1669 E. Kinghorn con L. Udney 3 Iuly 1666 E. Kinghorn con L. Udney 15 January 1668 Viscount of Kingstoun con Collonel Fullertoun 22 Feb. 166â— Kinross con L. Hunthil 10 Decemb. 1661 Kinross con L. Hunthil 25 July 1662 Kintore con Boyd 27 Ianuary 1665 Kintore con the Heir of Logan of Coaâ—field 9 July 1669 Kirkaldy con Balkanquell 9 July 1663 Kirktouns con L. Hunthill 12 Feb. 1662 Kirktouns con L. Hunthill 31 January 1665 L. Knaperin con Sir Robert Farquhar 9 Novemb. 1665 Kyle con Seaton 28 Iune 1665 L. Lambertoun con E. Levin 24 Iuly 1661 L. Lambertoun con E. Levin 3 and 11 dayes of Iuly 1662 L. Lambertoun con Hume of Kaimes 9 Iuly 1662 L. Lamingtoun con Chieâ—ly 29 January 1662 Lâ—nglands con Spence of Blair 17 Iune 1670 Langtoun con Scot 17 Decemb. 1670 E. Lauderdaâ—e con the Tennents of Swintoun 7 January 1662 E. Lauderdale con Wolmet 13 Iuly 1664 E. Lauderdale con the Viscount of Oxenfoord 11 Feb. 1665 E Lauderdale con Viscount of Oxenfoord last Feb. 1666 E. Lauderdale and Wachop con Major Biggar 7 Decemb. 1667 Laurie con Sir Iohn Drummond 18 Feb. 1670 Laurie con Gibson 4 Feb. 1671 Laurie con Sir Iohn Drummond 7 Feb 1671 Leckie con 20 Feb. 1663 Lâ—ith con L. Lismore and others 14 Iuly 1666 Lennox of Woodâ—head con Nairn 24 Iune 1662 Lennox con Linton 5 Feb. 1663 Lermont con Russel 9 Decemb. 1664 Lermont con E. of Lauderdale 12 Iuly 1671 Leslie con Gray 10 Ianuary 1665 Sir Iohn Leslie con Sinclar of Dun 22 Decemb. 1665 Leslie
confusion the last day of the Session February 21. 1663. THE Lords of Council and Session considering how necessary it is for the advancement and honour of His Majesties service that the Judicatories intrusted in him in the principal administration of Justice to His People be attended in all their meetings with due Decencie and Respect from all His good Subjects And that the rude disorderly and barbarous carriage of some Servants attending the Colledge of Justice and others joyning with them upon the last day of the Session is dishonourable to the Authority of the Court unsuitable to the gravity becoming the Persons relating thereto and un-beseeming the civility fit for such a place have therefore thought fit to discharge and hereby discharges all Servants of any Advocats Clerks Writers or other members of the Colledge of Justice and all other Persons whatsoever That none presume upon the last day of the Session to throw or cast any pocks dust sand or stones or to make any disorder or to use any rude or uncivil carriage within the Session House or in the Parliament Closs Certifying all such who being Servants to any Members or relating to the House shall in any degree offend herein they shall suffer three moneths imprisonment and for ever thereafter be debarred the House and service thereof And if they shall happen to escape the time of the committing the offence That their Masters shall be oblidged to enter them in prison in the Tolbooth of Edinburgh within eight days thereafter under the pain of two hundred merks Scots and ceritfying all such Persons who not relating to the House as said is shall offer to offend in manner foresaid They shall be apprehended and committed to waird for the space of three moneths and thereafter banished the Town And that none pretend ignorance ordains these presents to be printed and affixed upon the most patent doors of the Session House and to be insert in the Books of Sederunt therein to remain ad futuram rei memoriam ACT in favours of the keeper of the Minut Book Iune 6. 1663. THE which day the Lords taking to their consideration an overture formerly presented to them be the Advocats in favours of Iohn Scot keeper of the Minut Book shewing that the allowance appointed to him for inrolling of Causes by the Act of Sederunt dated the 28. of February 1662. is very inconsiderable being only two shilling scots for every Process and no ways answerable to his pains and attendance thereupon In respect whereof and for the said Iohn Scot his further incouragement to continue that faithfulnesse and integrity whereof he hath hitherto given proof in discharging the said trust The Lords ordain in time coming the Parties at whose desires any Process shall be inrolled or his Agent to pay to the said Iohn Scot for every Cause that shall be inrolled be him four shilling Scots money allanerly And ordains these presents to be publickly intimate and an Act to be extended thereupon ACT concerning the buying of the Citiedeal September 8. 1663. THE Lord President having produced before the Lords a proposition made by the Town Council of Edinburgh and subscribed by Sir Andrew Ramsay Provost of the said Burgh bearing as follows viz. The Lord Provost having reported to the Committee That the Citiedeal of Leith being of late erected in a Burgh of Regality which without doubt may in time prove prejudicial to this City for many undenyable reasons And that the Honourable Lord the Earl of Lauderdail to whom His Majesty hath granted the Right of the said Citiedeal had done the honour and favour to the Council of Edinburgh as to make them an offer thereof upon reasonable terms And that they are come that length in their Treaty as that it may be had for 6000 lib. Sterling payable in four years which the Magistrats are not at all in capacity to raise or make payment of without the two third parts thereof be raised out of the Chamber of Imposition which the Council thought not fit to do without the consent of the Grand Committee of the said Imposition And therefore desired the advice of the Lord President and all others the Members of the Committee To which report and proposition the said Lord President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay made answer That they found His Majestie 's gift so strick as they could not of themselves without consent of the whole Colledge of Justice give consent That any of the said moyeties should be imployed otherwise then to the payment of debts contracted before September 1650. Therefore the Committee thought expedient That the President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay might advise concerning that scruple and with all conveniency report that so necessary a bargain might be brought to some conclusion The saids Lords having considered the above-written proposition in one voice do consent and give advice that the two third parts of the pryce of the Citie-deal be raised forth of the Chamber of Imposition The Seall of Court November 26. 1663. MR. Alexander Gibson produced in presence of the Lords their common Seal wherewith Commissions and other Papers which went out of the Countrey use to be Sealled which Seal the Lords ordain to be made use of in time coming And ordained the said Mr. Alexander to make the same forth-coming to the saids Lords when ever it should be required And ordains him to give the use of the said Seal to the remanent Clerks when they have to do therewith ACT against general Letters Iune 8. 1665. THE Lords considering the manyfold inconveniences arising of late from the frequent use of directing General Letters and Charges Summarly and that the same is contrary to the ancient custom whereby they were only raised upon Decreets conform Therefore the Lords do hereby revive and renew that ancient custom And Enact and ordain that in time coming no Charges nor Letters of Horning shall be direct Generally against all and sundrie except allanerly upon Decreets conform purchast and obtained be the Parties raisers of the saids Letters And prohibit and discharge the Writers to the Signet and the Clerks to the Bills to writ present or passe any Bills for General Letters and the keeper of the signet to affix the signet to any such General Letters unless the same be direct upon Decreets conform as said is Likeas the Lords declare any such General Letters that shall be raised in time coming where Decreets conform have not proceeded with all execution following thereupon to be void and null and have no affect But prejudice always of any General Letters or Charges raised or to be raised at the instance of His Majesty's Thesaurer Thesaurer Depute or others impowered for His Majesti's Rents Customs Casualities or other dues belonging to the KING'S Majesty according as they have been in use to do And also excepting any General Letters raised or to be raised at the instance of the Lords of Session for the
and even before Contracting of the Creditors Debt her Infeftment must stand valid seing it was less than what was her Right The Lords found the Vitiation of the Contract to have been after the Marriage and Sustained the Declarator and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones and for the whole in time coming unless it were proven by the Wifes Oath that she consented to the alteration of her Contract Margaret Livingstoun contra Burnâ— Iune 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk pursues a Declarator of the Bastardy and Restitution of the Goods against Burns who alleadged no Process because the Libel condescending upon the Bastards Father and Mothers Names and that the Defunct was Bastard the same must be proven by VVitnesses and so the Summons must be continued it being a known Maxime that all Summons not instantly verified either by Presumption or Probation by VVrit but which must be proven by VVitnesses or Oath must be continued The Pursuer answered that albeit ex alundante she had condescended on the Bastards Father and Mother yet whoever were Father and Mother that they were not Married together is a Negative and proves it self and needs no further Probation but is presumed and puts the burden of Probation upon the Defender that they were really Married at least so holden and repute 2dly Albeit Probation were necessar that the Defunct was either Bastard or so commonly repute the Probation may proceed upon the first Summons in favorem Fisci and is so accustomed in Declarators of Bastardy and in Declarators of Non-entry wherein though the Death of the Vassal be Libelled yet the Summons is not continued The Lords found that the Summons behoved to be proven that the Defunct was at least holden and repute Bastard and that Bastardy was not presumed but they Sustained the Declarator without continuation and that the Declarator might proceed upon the first Summons Scot of Thirlestoun contra The Laird Drumlanrig Eodem die SCot of Thirlestoun having Adjudged cerrain Lands Charges Drumlanrig Superiour to receive him who Suspends and alleadges he ought to have a years Rent conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura But not only this Adjudication was led before the Act but Drumlanrig was Charged before the Act and having no just reason to Disobey the Charge when he was Charged he cannot claim the benefite of a subsequent Law It was answered The Tenor of the Act was Declaratory and bear a general Clause that Adjudications should be in all things as Apprizings The Lords found that seing the Act did not expresly relate to bygones It could not extend to any Adjudication whereupon a Charge was given before the Act. Lord Iustice Clerk and his Son Sir Alexander contra Earl of Hume Eodem die THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame and Francis Stuart sometime Earl of Bothwel whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume until he were payed of nineteen thousand Pounds and also that the Earl should uplift two hundreth pound Sterling of Annualrent â—orth â—hereof to him and the Heirs-mail of his Body and it was Declared that the Possession for the nineteen thousand pound should only be for the Annualrent thereof fructibus non computandis in sortent Sir Alexander Hume as having Right to this Contract by progress did pursue a Declarator against the late Earl of Hume that in regard his Predecessor the Earl of Hume Contracter Died without Heirs-male of his Body and he continued to Possess who had no right to the Annuity of two hundreth pound Sterling that his Possession did satisfie the nineteen thousand pound and purged the Right the said umquhil Earl dying there is now Summons of Transferrence at Sir Alexanders instance against this Earl of Hume as Representing his Father and also therein a Declarator against this Earl as appearand Heir that the Contract was satisfied and extinct by Intromission and the Lands Liberate Compearance is made for an Appryzer who produced his Infeftment and who had apprized the Lordship of Coldinghame and all Right thereof competent to the late Earl of Hume who alleadged no Process for the conclusion of Declarator against this Earl of Hume because all Parties having Interest were not called viz himself who had Denuded the Earl of Hume and who is not cited The Pursuer answered that this being a Personal Contract with the Earl of Hume whereupon no Infeftment had followed seing the original Right was in no Register he was not obliged to search the Register for the Infeftments of Appryzers but it was sufficient for him to call the appearand Heir of the Contracter But seing this Alleadgeance could not be proponed for the Earl of Hume being jus terâ—tij neither by the Appryzer unless he had produced his Right to verifie the same instantly seing he now compears for his Interest he may be admitted and heard to Defend thereupon in causa but not to delay or exclude the Process till a new Citation but according to the Lords ordinar custom he may see the Process in the Clerks hands and propone his Defense as the Lords have done in the same Process against one Park another Appryzer The Lords Repelled the Defense but allowed this Appryzer as they had done the other to see in the Clerks hands and to be heard upon his Right and Ordained all the Advocats compearing for the Defenders to produce any other Interest in their hands and not be delay the Process by dropping them in severally Langlands contra Spence of Blair Iune 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights of certain Lands granted by Hamiltoun of Blair his Author because Hamiltoun was Inhibit at the Pursuers Instance before he granted these Rights to the Defender It was alleadged for the Defender Absolvitor because the Inhibition was null the question being of Lands lying within the Regality of Culross and the Inhibition was not Execute at Culross the head Burgh of the Regality but at Pearth the head Burgh of the Shire and for instructing that Culross was a Regality the Lord Colvils Infeftment was produced which though it bear not expresly a Regality yet is bears a Bailirie with power to Repledge which importeth a Regality and accordingly the Bailzie and not the Sheriff makes count in Exchequer and Briefs are direct to the Bailzie and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross The Pursuer answered that Culross was never denominat holden or repute a Regality but a Bailliry and though the power of Repledging be a special priviledge of Regality yet there are many other priviledges thereof not consequent upon the Repledging 2dly The Pursuer having followed the ordinar course used the time of his
ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâ—cie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâ—ymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâ—erewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ— And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ— and Councilers Right trusty and well-beloved Councilâ—rs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defâ—rence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and â—ear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
the Ground whereby they would be preferred to the Appryzing Iuly 8. 1671. Margaret Scrymzour contra Earl of Northesk By this Decision the Accumulation of Annualrents by the voluntar Disposition was Evacuate DECLARATOR of the expyring of a Reversion upon a clause irritant was found null summarly without Reduction in respect the Decreet bear not the Production of the Instrument of Requisition whereupon the irritancy fell although the Instrument was now produced and the party long in Possession by vertue of the Decreet and albeit the Requisition was expresly libelled upon and that it seemed to be the Clerks omission in not mentioning of it in the production February 22. 1671. Piâ—cairn contra Tennents DECLARATOR OF ESCHEAT was sustained without calling all parties having interest at the Mercat Cross though it was a part of the Style of the Summons in desuetude Iune 23. 1666. Masson contra DECLARATOR OF WARD AND NONEENTRIE should only be pursued before the Lords of Session not before the Exchequer Iune 14. 1665. His Majesties Letter Recorded in the Books of Sederunt DECLARATOR OF THE NVLLITIE of Bonds and Rights to Creditors by a Feear in a Tailzie with a clause de non aliâ—nando was Sustained without the form of a Reduction or Production of the particular Rights Ianuary 21. 1662. Viscount of Stormount contra creditors of Annandale In a Declarator of Property the Defender was not admitted to propone a Nullity in the Pursuers Right or that certification was granted against his Authors Seasine even at the Defenders instance unless the Defender alleadge a better Right Iuly 10. 1662. Lord Frazer contra Laird of Phillorth A DECREET of Removing for not finding caution in absence was found null by Exception in respect the Title Libelled on was not produced but the Infeftment of another Person of the same name fraudfully mentioned in the production so that it was not Sustained as titulus bonafides to give the Possessor the Fruits Iune 21. 1671. Neilson contra Menzeis of Enoch A Decreet being stopped on a Bill was found not to be recalled but only the Extracting thereof to be forborn till the Party were heard on the Grounds of the Bill and that though it lay over several years it needed not wakening Iuly 1. 1671. Broadie of Lethem and the Laird of Riccartoun contra Lord Kenmure A DECREET ARBITRAL was found null as not being within a year of the Submission though it had no time but a power to the Arbiters to meet at their convenience and prorogat but did not prorogat the same February 24. 1665. Mcgregor contra Menzeis A Decreet Arbitral was sustained without Submission in Writ it being proven by the Parties Oath that he so submitted and by the Arbiters Oath that they so decerned though both the Submission and Decreet were only verbal the matter being but of 200. merks February 7. 1671. Hume contra Scot. Here the matter was a Bond of 550. merks Suspended and determined to 200. merks DECREETS OF INFERIOVR COVRTS were found not to be taken away upon Iniquity though it be instantly verified by the Decreet by way of Suspension without Reduction Ianuary 24. 1662. Ker contra Lord Rentoun A Decreet of an Inferiour Court was not Reduced simply because Advocation was produced before Extracting being after Sentence but was Reduced because the Advocation was produced before eleven hours which was the ordinary hour of beginning to sit but the Sheriff sat that day an hour before ordinary which the Lords found sufficient presumption that it was of purpose to prevent the Advocation Iuly 10. 1662. Laird of Lambertoun contra Hume of Kaimes A Decreâ—et of an inferiour Court was not Sustained as in â—oro where a Term was taken by a Procurator to prove a Defense without a Mandat or Writ produced that might inâ—er the same November 24. 1665. Chalmers contra Lady Tinnel A Decreet of an inferiour Court was found null for want of Probation bearing only that the Defender compeared and conâ—essed the debt without proponing any other alleadgeance or deâ—ense and not Subscribing his acknowledgement Iuly 19. 1665. Guine contra Mcken A Decreet of an inferiour Court upon compearance was not found null by Suspension without Reduction though it had visible Nullities and was a small matter Inter pauperes November 21. 1665. Baxters in the Cannongate contra A DECREET OF SESSION was Reduced as null being ultra petita Iuly 21. 1666. Waison contra Miller A Decreet of Session in foro whereby in a Suspension a sum being alleadged paid not instantly verified the Letters were found orderly proceeded conditionally if any thing were produced by such a time it should be received and was not produced after which the Lords would not admit it being now produced in a Reduction of an Appryzing of the said Decreet now in the hands of a singular Successor Iune 16. 1664. Laird of Tillieallan and Condie contra Crawfoord A DECREET OF PARLIAMENT was taken away by double poynding without a Reduction the same being referred to the Lords by the Parliament upon Supplication on this Reason that it was pronunced against a Forefault person alter his death without calling the Kings Officers Iuly 14. 1665. Earl of Argile contra Mcdâ—wgal of Dinolich and Raca A Decreet of Parliament Rescinding a dishabilitation of the Children of Forefault Persons without Citation was Sustained there being no Citation of the Children to the Dishabilitation nor Restitution by way of Grace but in Iustice the Children being Infants incapable of the Crime February 24. 1665. Sir Robert Sinclar contra the Laird of Wedderbâ—rn DELIVERY Vide Chyrographum December 13. 1666. â—â—net Thomson contra Stevinson Delivery of an Assignation was not found necessary to validate the same being granted by a Defunct to his near Relation though not in his Family though it bear not a Clause to be valide without delivery seing it bear a Reservation of his Liferent and a power to dispose evidencing his purpuse not to deliver the same and so importing the Writ to be valide without delivery Delivery of three Dispositions in Tailzie to a Daughters Son was found to be implyed by a Clause in the first dispensing with delivery and seing the Substantials of the rest were the same with the first and only qualified the same conform to the reserved power in the first they were all Sustained though the other two had no dispensatory Clause but so that what was in the first for the benefite of the Heir should be holden as repeated in the rest that by the rest the Heir might not be in a worse case Iuly 23. 1669. Elleâ—s contra Inglesâ—â—â—n Delivery of Bonds of provision to Children is not presumed to have been at or near the date but must be proven to prefer them to posterior Creditors Iuly 22. 1668. Iohnstoun of Shâ—ins contra Arnot DEPOSITATION of a Writ was found probable by the Notar and Witnesses insert where the Writ was not produced by the Party in whose favours it was principally