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justice_n	king_n	law_n	power_n	9,684	5	5.3760	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52358	Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.	Nisbet, John, Sir, 1609?-1687.; Scotland. Court of Session.	1698 (1698)	Wing N1170; ESTC R16027	472,476	492

entering to the possession of Lands whereof the Defunct was in possession but his Title is found thereafter to be void Will his medleing import Behaviour aditionem passive Gift THE late King having granted to a certain person the Gift of an Office at His Majesties presentation There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office notwithstanding that the person who had the former Gift ad vitam or culpam is yet Living and is not deprived And it is now desired that His Majestie should not only ratify the said late Gift but that of his certain knowledge proper motive and by vertue of his prerogative he should give a new Gift of the said Office Revocking and annulling the former Gift granted by the late King to the present incumbent and giving power to the person to be presented by the New Gift to enter presently to the Exercise and benefite of the said Office by himself and his Deputes And ordaining the present Incumbent to deliver up the Registers and recommending to the Lords of Session to construct His Majesties Gift with the greatest latitude that their Nobile Officium can allow And containing a promise to ratify in Parliament Quaeritur Whether a Gift of the Tenor foresaid be according to Law It is Answered That the samen is altogether against Law and Form for these Reasons 1mo By the common Law there can be no valid Gift of an Office or place unless the same be Vacant and the manner of Vacation exprest in the Gift seing the Office belonging to another who has Right to and in possession thereof the same is not in the hands and power of these who has Right to present so that they may give the same 2do If it be pretended that it may be taken periculo petentis and that the Incumbent may be thereafter deprived or may decease and that the Gift may be effectual in either of the said cases Such a pretence is both against Common Law and our Practique seing it imports votum captandae mortis And by an express Act of Parliament Gifts of Escheat should not be given before they fall by Horning and there is the same Reason as to all other Gifts 3tio That a former Gift granted by the late King who undoubtedly had Right to give the same should be Revocked and Annulled without a previous citation of the person concerned and without so much as a hint of any reasons why his Right should be taken from him is a Streach not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere neminem laedere 4to That what cannot be done in Law and Justice should be desired to be done by vertue of His Majesties Prerogative is an Injury to so just a Prince And it is of a dangerous preparative that His Majesties Prerogative should be pretended for Favours to private persons that are Unjust and Illegal 5to Whereas it is desired that it should be recommended to the Lords of Session to construe His Majesties Gift if it should be granted and if there should be any Question upon the same with the greatest Latitude that their Nobile Officium may allow The said Desire and Stile is Illegal and without any precedent and should not be a precedent hereafter seing there ought to be no prelimitation upon the Lords of Session And it is their Duty and may be expected from them that they will construe His Majesties Grants according to Law and Justice And their Nobile Officium being as the Highest Judicatory to do Justice according to Law they have no Latitude to recede from the same Gift of Escheat with Backbond IF a Backbond do so affect the Gift of Escheat that the Donator cannot Assign the same Gifts of Forefaulture LAnds being Disponed by His Majesty as being in his hand upon Forefaulture conform to a certain Decreet of Forefaulture mentioned in the Right with the Clause cum omni Jure and the King having the time of the granting the Disposition Right to the Land as being in his hands for committing another Deed of Treason after the former whereupon there was not a Decreet the time of the Disposition Quaeritur If the said former Decreet be taken away whether the Donator will have right to the Lands upon the Supervenient Deeds and new Decreet of Forefaulture following thereupon Ratio Dubitandi The said Right is upon a special Ground causa limitata limitatum producit effectum And the Clause ●um omni Jure is only Clausula executiva and is only to be understood of Inferior Rights to Mails and Duties by reason of Ward Non-entry or otherwayes and not of the right of Property upon other Grounds Swinton Gifts of Recognition A Gift of Recognition bearing Lands holden of the King Ward to have been Disponed but not specifying the same or special as to the Lands but not as to the persons in whose favours the Disposition is made if it will be valid Gift of Ward THE Superior having gotten a Gift of his own Ward either to himself or to another for his behoof gratis Quaeritur If the Sub-vassals may claim the benefite of the said Gift and to be free of the said Ward Ratio Dubitandi That in effect the said Gift is a Discharge of the Ward which being Discharged to the Superior is Discharged to the Subvassal whose Property falls in Ward only consequentially and on the other part as the Superior and Donator to the Ward may take advantage of the same both against the Vassal and Subvassals the Vassal ought not to be in a worse case than another Donator If Gifts of Ward and Non-entry prejudge singular Successors THere are some Casualities which are Fruits of Superiority and have Tractum temporis as Ward and Non-entry c. And these being Gifted will be effectual during the whole time of their endurance as to the Granter and his Heirs But there may be question as to singular Successors Whether the Donator will have right to the Ward and Non-entry for Years after the Giver is denuded Ratio Dubitandi That resoluto Jure dantis resolvitur jus accipientis and such Gifts are of the nature of Assignations to Mails and Duties which are not effectual but during the Right of the Cedents And the Ward and Non-entry do belong to the Superior by reason he wants a Vassal to serve him and the singular Successor having that prejudice he ought after his Right to have the benefite of the Casualities Vide Liferent-Escheat Quaest 7. in Lit. E. Goods belonging to the Rebels at the Horn. A Creditor having affected the Moveables of the Defunct by confirming himself Executor Creditor and having got possession of the same whereby he is satisfied of his Debt Quaeritur If the same may be evicted from him by a Donator to the Defuncts Escheat Answer It is thought they cannot be evicted Seing

that pretence That the possession of the principal Lands is the possession of the Warrandice fictione Juris It was Answered That there is no such fictio warranted by any Law and so it is Fictio but not Juris 2do It is a Fictio contra Jus cui Jus resistit in respect the Heretor by the publick Infeftment of property being in possession no other person can be said to be in possession seing there cannot be two Domini in solidum nor two Possessores by distinct Rights having no subordination or dependance one upon another as Liferenter and Fiar Superior and Vassal Master and Tennent or such like 4. It is clear that the possession of the principal Lands cannot be thought the possession of the Warrandice Seing if after Fourty Years the principal Lands should be evicted and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice though Prescription cannot be obtruded yet if there be any defect in the Infeftment of Warrandice as v. g. The Disposition is subscribed by one Notar or such like The same may be alledged Whereas if that Infeftment were cled with Fourty Years Possession the Right would be prescribed and could not be questioned upon any Ground whatsoever but Falsehood In this Process It was Questioned whether the Heretor who had the publick Infeftment having been in Possession above Seven Years should have the benefite of a possessory Judgement until a Declarator and a Decreet in petitorio Some of the Lords thought that in the case of Warrandice the Heretor should not have the benefite of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice quia non valebat agere But the question was not decided D. 16. Cranston contra Wilkison 14 July 1666. BEtwixt Cranston and Wilkison It was Found Newbyth Reporter That a Person being conveened as representing his Father who was alledged to be vitious Intrometter to the Pursuers Debitor the Title being passive and penal could not be a Ground of Action against the Defender to make him Lyable to the whole Debt But only in so far as should be proven the Defunct did Intromet and was Locupletior quia actio poenalis non transit inhaeredem And the Defunct if he had been pursued in his own Life might have purged the said Title D. 17. Burnet contra Johnston 17. July 1666. JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir Reserving his own and his Wifes Liferent and thereafter having Disponed the same Lands in favours of Mr. William Johnston who did obtain the first Infeftment And being charged at the instance of Alexander Burnet having Rght by Assignation to the Disposition in favours of Birsemoir The Letters were found orderly proceeded notwithstanding the Suspender alledged the Charger had no interest dureing the Suspenders Life Seing he never did nor could possess by reason of the Reservation foresaid And the Lords found a difference when Warrandice is craved upon a deed of the Party obliged and upon any other ground And that as to his deed he may be charged to purge it without necessity to alledge a Distress D. 18. Wedderburn contra Scrimzeour 18. July 1666. A Father having left a Legacy thinking his Wife was with Child in these terms That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Merks And that if she should have a Daughter the Legatar should have the Sum of 5000 Merks The Lords Found That though she had no Child the Legacy should be effectual ex praesumpta voluntate Testatoris seing it cannot be thought but that he rather intended a Legacy for him if he had no Child Than in the case she should bring forth a Child Et in conditionibus primum locum obtinet voluntas Defuncti eaque regit conditiones L. 19. ff de conditionibus Newbyth Reporter D. 19. Steill contra Hay Eeod die A Tennent being Ejected Ejection was sustained at the Masters instance though the Tennent did not concur But it was not sustained quoad omnes effectus viz. As to violent profits Juramentum in litem but only that the Master should be in the same condition he was before the Ejection and should have the same manner of possession as if the Land were not void and to uplift the duties and to put in and remove Tennents And for the Bygone ordinary Duties in the same Process it was Found that the pursuer though he was not Infeft but only Appearand Heir to the Pursuer who was Infeft might pursue the said Action to recover his Possession having been in possession before D. 20. Hedderwick contra Wauch Eod. die THE Commissioners for the Borders upon the Verdict of the Inquest that the Pannel was guilty of Receipt of Theft having ordained the Pannel to pay 100 lib. Sterl within a short time and if he should faill to be sent to Barbadoes and loss his Escheat The Lords Found That by that Verdict there did arise to his Majesty the Casuality of his Escheat Whereof there being Jus quaesitum The King and his Donator could not be prejudged by a Doom which is contrary to Law And that in such cases of Capital Crimes the Law having determined the pain and especially the loss of the Escheat no Judge even the Justice General could moderate or lessen the samen D. 21. Bisset contra Broun 19 July 1666. IT was Found nemine contradicente That a Stranger residing in Holland animo morandi or elsewhere Though by the Law of the place his nearest of Kin without confirmation has Right to all Goods or Debts belonging to him Yet if the Debt or Goods be due by Scots-men or be in Scotland they cannot pursue for the same unless the Right thereof be setled upon them according to the Law of Scotland by confirmation if they be Moveables Or by a Service if they be Heretable Hay Clerk D. 22. Thomson contra McKitrick Eod. die FOund that a Comprysing may be deduced upon an Heretable Bond whereupon Infeftment had followed the same being payable without requisition albeit a Charge of Horning do not preceed seing there may be poinding upon such a Bond And there is Eadem Ratio as to Comprysings and the Denounciation is a sufficient Intimation that the Compryser intendeth to have his Money Hay Clerk In the same Cause The Lords having sustained a Seasin of burgage Lands whereto the Sheriff-clerk was Notar there being no Town Clerk for the time by reason in the time of the English Usurpation The Magistrates and Clerk refused the Tender The Lords Found That the said Seasin being within Burgh though not under the hand of the Clerk was not null upon that Ground that it was not Registrate Because though the reason of the Act of Parliament for Registration of Seasins and the exception of Seasins within Burgh be that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books

of Teinds Ib. Tailȝies 197. Tailȝie altered 201. Teinds 202. Teind of Fish Ib. Proving the Tenor. Ib. Decreets for proving the Tenor. 203. Terce Ib. Territorium 205. Testament Ib. Testament Execute 206. Testament and the Wifes part Ib. Testes 208. Third and Teind Ib. Titles of Honour Ib. Titular 209. Tocher Ib. Quaestiones de Tractatu Suedico Bonis prohibitis Vulgo Counterband 210. Posterity of Traitors 214. Transumpts 215. Trebellianica Ib. Trust Ib. Trustees in Infeftments Ib. A Trustee committing Treason Ib. Tutors 216. Tutor and administrator of Law 217. Tutor Ratione Rei Ib. Tutory Ib. V. Re-entering of Vassals 218. Vectigalia Pedagia Ib. Vinco Vincentem Ib. U. Union Ib. Vniversalia Augmentum recipiunt 219. Quando Vniversitas delinquit Ib. W Wadsets Ib. Wadset Heretable or Moveable 220. Wadset proper Ib. Ward 221. Ward Lands 222. Taxt Ward 223. Warrandice Ib. Infeftment of Warrandice 224. Waste Ib. Witnesses Remitted Ib. Witnesses in case of Treason Ib. Women Witnesses Ib. Obligements to employ Sums of Money for Provision of Wives 225. A Womans Jointure Ib. Woods 226. Wrack Ib. Z. The case of the Admirality of Orknay and Zetland Represented in behalf of the King in Answer to the Duke of Lennox's Claime thereto Ib. ERRATA in the Doubts c. PAge 2. lin 16 after posterior add first p. 10. l. 21. given read got p. 16. l. penult dele or p. 19. l. ult place the comma after only p. 23. l. 8. right r. burden p. 25. l. 3. was r. is Ibid. dele and. p. 26. l. 13. after Disponner add a me de me p. 61. l. 22. r. in comperto p. 82. l. 11. of Kin r. Heir of Tailȝie p. 83. l. 12. after unles add Tailȝied p. 84 l. penult Males ls 1. Males are p. 99. l. 19. after use add of p. 102. l. 29. 1. Confirmatione p. 114. l. 7. aditur r. auditur ibid. l. 41. r. pertinebat p. 122. l. 20. nor r. but. p. 130. l. 7 Immediate r. mediate p. 133. l. 10. against the Price r. against the Buyer p. 170. l. 45. r. oblectari p. 184. l. 11. null r. Moveable p. 195. l. ●9 second r. first p 198. l. 8. dele male p. 218. l. 14. after but add If SOME Doubts and Questions IN THE LAW Especially of SCOTLAND A. Adjudications BY the Act of Parliament upon Comprisings or Adjudications for a Sum of Money The Superior may be forced to enter or to pay the Debt Quaeritur If he may be urged to enter upon Adjudications proceeding upon Dispositions in prejudice of the Superior by obtruding a Vassal seing in that case he has not Retractum Feudalem A Vassal having made a Disposition or granted a Bond for Disponing his Lands will the Superiour be obliged to Infeft upon Adjudication Ratio dubitandi That the Superior by the Act of Parliament is obliged only to Infeft Comprysers or Adjudgers being Lawful Creditors and he has Retractum Feudalem paying the Creditor And the Debitor has Retractum Legalem which is not in the case of Dispositions If Lands should be Adjudged from the Appearand Heir of Ward-lands Whether will the Appearand Heirs Marriage be due and affect the saids Lands in prejudice of the Adjudgers Answer Albeit that it appears that Marriage should be of the nature of Ward which is not Real as to singular Successors the Superior having only Right to the Duties which he may uplift And ex stilo of a novo damus Marriage is not reckoned amongst real Incumbrances Yet in the case of Thornidikes the Lords has found Marriage Real Whether as Reversions that are comprysed need no Intimation In Respect of the Series of Solemnities that is in Comprysings By which they become so publick that they are presumed to be known to the Person Lyable If there be not Eadem Ratio in Adjudications being now of the nature of ordinary Decreets If at least there be a difference betwixt Bonds and Reversions So that as to Bonds when there is a Competition of Two Comprysers The Posterior intimating should be preferred If Superiors who are Subjects only will be obliged to receive Adjudgers to be their Vassals having Adjudged not for Debt but upon Dispositions And if the King be in another Condition If upon a Disposition The Receiver should obtain Sentence for Damnage and Interest against the Disponer his Heir for Implement If in that case the Adjudger ought to be received Ratio Dubitandi That Primordium inspiciendum est and upon the matter there was not a Debt ab initio If a Reduction Ex capite Minoritatis not being intented at the instance of the Minor Jus Actionis may be Adjudged An Heretable Bond being Adjudged Though there be no necessity of Intimation because Adjudications and Comprysings are publick Rights upon Record Quaeritur If the Debitor paying bona fide to the person to whom he granted the Bond will be in Tuto the said Adjudication not being intimate Answer It is thought that he should be in Tuto seing Intimations are required for Two Effects Viz. Either to compleat the Right be Assignation or to certiorate the Debitor that he make payment to no other person And though an Adjudication be sufficient as to the said first Effect an Intimation is necessary as to the other unless the Debitor be called in the Adjudication Advocation by the Justices IF the Justices may Advocate to themselves Criminal Processes depending before Lords of Regality or other Judges It is thought The Lords of Justiciary cannot Advocat The taking or Advocating Processes from a Competent Judicatory upon Reasons of Advocation being a Power and Prerogative belonging to his Majestie 's Supreme Judicatories of Session and Council And Reasons of Advocation either upon Suspicion or some other Reason meerly Civil or of State belong not to the Cognisance of the Justices but to the Lords of Session and Council If they were to Advocate the Reasons of Advocation behooved to be first discust and what could be the method since all Processes before the Justices are so peremptory That Caution must be found both by the Pursuer and Defender Alimenta COnstituto semel Alimento quo nihil in jure magis favorabile aut magis personale de eo nec Alienatio nec Transactio rité celebratur datur enim ut persona exhibeatur utcunque vitam toleret Mirum igitur Advocatos primi ordinis tanto conatu boatu summa ope annisos ut Judicibus persuaderent aut imponerent asserentes Alimentum uxori constitutum juri Mariti obnoxium esse vel saltem creditoribus Mariti esse integrum illud afficere Quod enim ossibus haeret nec a persona cui competit avelli aut alienari potest illud nec juris Ministerio aut fictione transfertur Quum igitur Alimentum adeo personale sit ut superius diximus ut alienari nequit ita ut ab uxore nubendo in Maritum non possit transferri tacitâ quasi alienatione Sublato autem

Provisionis ita dispositis ut multi sint gradus Substitutionum eo multis aliis casibus tutius esset aequius Instrumentum illud in publica custodia esse ut sic omnibus quorum interest consultum sit quam Instrumento penes unum retento ejus negligentia vel dolo reliquorum Jus periclitari Praeterea Creditore penes quem Instrumentum est decoquente cum Debitore suo colludente ut id genus hominis fallax est facile esset illudere Creditoribus suis qui Instrumentum istud per adjudicationem sibi addici obtinuerunt Instrumento in causa Falsi consulto intentata haud exhibito Mihi autem in isto Recessu unice satagenti quomodo prodesse utcunque possim videtur omnibus quorum interest consultum fore incommodis commentis quae ultro citroque adduci possunt obviam iri si tempore confictionis Instrumenti ejus Copia aut exemplum describatur ab eo qui Instrumentum ipsum scripserat ei subjiciatur breviculum seu brevis nota ab eodem scriptore scripta iisdem partibus Testibus Subscribentibus ejusdem Datae eo qui sequitur aut simili tenore Nos vero obligati scilicet in Instrumento agnoscimus Copiam suprascriptam verum esse integrum exemplar Instrumenti seu Contractus inter nos confecti ejusdem datae tenoris volumus consentimus ut virtute clausulae Registrationis in dicto Contractu insertae nec non virtute praesentium ut praedictum Instrumentum coram curia exhibitum in Libris Curiae Registretur habiturum vim ad effectum suprascriptum nec non volumus consentimus quod extractum praefati Instrumenti in omnibus causis etiam Falsi Improbationis exhibitum una cum isto Breviculo sufficiens erit efficax ad omnes effectus haud secus quam si Instrumentum ipsum exhiberetur aut productum satisfaceret Registrantur Instrumenta non tantum Executionis sed custodiae causa ad futuram rei Memoriam ut plaerumque fit in Acceptilationibus Apochis quando concedens ad nihil faciendum obligatur adeo ut Executione haud opus sit ne tamen intercidant consentit ut ad futuram rei memoriam in libris actorum inserantur asserventur Registrantur etiam Instrumenta nec Executionis nec custodiae sed Insinuationis ergo idque summa ratione necessitate nedum utilitate unusquisque enim scire debet conditionem ejus cum quo contrahit juxta regulam Juris Id autem scitu difficile est isto tempore Candoris Bonorum Morum effoeto Fraudis autem feraci saepe enim eveniebat ut comparatis praediis ut optimis maximis nec cirta justum maximum pretium emergerent qui sibi Jus in iis vindicarent vel Dominii vel Retractus seu Reversionis sic iis vel evictis vel modica pecuniula redemptis Emptor delusus tam Terris quam pretio carebat actione adversus venditorem plaerumque inopem prorsus inani Scire igitur expedit conditionem rei de qua contrahitur an sit penes Disponentem penitus sua nec aliena sit vel Jure Dominii nec Hypothecae nexu aut annui reditus aut alio onere gravata aut Retractui aut Reversioni obnoxia Nec minus cognitu necessaria est conditio vendentis aut alterius contrahentis licet enim Dominus sit Dominium sit potestas de re sua Disponendi Juxta regulam Juris quilibet est Rei suae Arbiter subjungitur tamen in ista Regula Nisi Lex obstet Lex autem obstat Dominis ne de rebus Terris suis libere disponant Legum vinculis forte praepeditis Inhibitione scilicet quando in rem ad instantiam Creditorum inhibiti sunt aut in rem suam suorum haeredum iis bonorum suorum Administratione interdictum est aut quando Rebelles Denunciati sunt Exleges De quibus impedimentis alibi suis locis disseruimus Ut autem incommodis ex ignorantia tam conditionis rei quam personae obviam eatur utque conditio utriusque innotescat plurimis Constitutionibus Legibus enixe cautum est If a Disposition may be Registrate the Disponer being on Life but the receaver being Deceast Ratio Dubitandi Registration is to the effect it should have the force of a Decreet and there can be no Decreet in favours a Dead Person Regum Contractus COntractus Principis habet vim Legis quoad observantiam immo potentior est Lege intensive quia ligat successorem quod Lex non facit secus vero extensive quia Lex ligat omnes Contractus Regius etiam ex lege successor factum Principis antecedentis principali nomine peractum ejus licet non sit haeres ratum ut habeat conveniens est alioqui publica fides dignitas principalis collaberetur Thes Besold p. 549. Reges absoluti non litigant depossessionati Le Roy plaide saisi Thes Bes p. 560. Relief of Cautioners IF Cautioners finding the principal to be in a worse condition may pursue for Relief before Distress At least to be secured out of his Estate Relocation A Tack being set and the Setter being deceased Quaeritur If after his decease and no person being Heir to him the Tacksman may be said to bruik per tacitam Relocationem seing there is none that can be said to be Relocans Reluitio seu Retractus INter Juris Interpretes celebris est Contraversia de Jure reluendi seu Retractus quod apud nos Reversio dicitur an ei praescribi possit qui affirmativam tuentur regulam qui negativam exceptionem Sententiae suae fundamentum adducunt Regula est Omnes actiones omnia Jura etiam maxime longaeva longissimo tempore id est lapsu quadraginta annorum praescribi extingui Exceptio est Ea quae sunt merae facultatis haud praescribi Apud nos lis ista sopita est Constitutione enim Regis Jacobi Sexti Act. Parl. 12. 1617. Cavetur omnia Jura Contractus inter alia Reversiones Retractus ex iis actiones 40. annis praescribi Exceptis Reversionibus quae sunt in corpore Juris investitura excipientis iis etiam quae insinuatae in Archiva publica regestum relatae sunt quibus casibus cum nulla subsit suspicio falsitatis ut ait Lex ista actiones ex iis statuitur esse perpetuas Sed cum Contractus Chirographa seu obligationes praescribantur licet insinuatione publica in archivis sint qui fit ut ubi eadem par est ratio dispar Jus sit Remissions IF the Exchequer when Remissions are not given by the King may grant Remissions sine causae cognitione upon a Letter of Slains If Remission can be given for Murder Answer The Kings Power is not limited but in Justice Remissions cannot be given but in the cases that by the Divine Law