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
and so would not insecure Creditors doing diligence by Arrestment Lyon of Muirask contra Heretors of the Shire Eodem die LYon of Muirask having been Commissioner in the Parliament 1648. did by vertue of the Act of Parliament 1661. Allowing Commissioners Charges to these who served in Parliament 1648. Who adhered to the Engadgment charges the â—â—eretors of the Shyre to meet and Stent and their being a Stent made conform to the Valuation he Charges thereuponâ— some of the Heretors Suspends and alleadge that they were not charged to meet and so the Stent Roll is null 2ly That is not instructed that the Charger attended all the dayes in the Parliament 3ly That the Roll ought to be made according to the Retour and not to the Valuation conform to the Custom before the troubles The Lords found that seing the Heretors who met expressed in the Stent Roll that all the Heretors were charged that it was sufficient though the Executions against each on of them was not now produced and because the Sedâ—runts of the Parliament 1648. were not to be found They found he had right to the whole Charges during the Parliament unless for such time as they shall prove by his oath that he was absent but found that the Stent Roll ought to be according to the Retour and not to the Valuation Lady Greenhead conra Lord Loure February 10. 1665. THe Lady Craig and the Laird of Greenhead her second Husband pursues the Tenents of Craig wherein she is Infeft for Mails and Duties In which Process my Lord Loure coâ—â—pears for his Interest and alleadges that he having Appryzed the Estate of Craig and being Infeft thereupon hath raised Reduction of the Ladies Infeftment on this Reason that a Part of his Sumes being anterior to the Ladies Infeftment who was competently provided by her Contract of Marriage in 30. Chalder of Victuall and this additional Infeftment of fifty Chalder of Victual being betwixt most Conjunct Persons Husband and Wife in so far as it is posterior to the Pursuers lawful Debt ought to be Reduced upon the Act of Parliament 1621. The Pursuer answered the Reason ought to be repelled First Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts in prejudice of their lawful Creditors is not relevant seing Craig the Disponer was not a Bankerupt 2ly As he was not a Bankerupt so neither was heâ— insolvendo because the Reversion of his Estate is sufficient to pay his Debt albeit the Same were affected with this additional Joynture It was answered for the Defender that albeit the Title and Narrative of the Act be against Bankerupts yet the Statutory part thereof is against all gratuitous Dispositions by Conjunct Persons so that the Defender needs not alleadge that either the Disponer was Bankerupt or insolvendo but that the Ladies Infeftment is betwixt Conjunct Persons without an onerous Cause The Pursuer answered that the Disponer was neither Bankerupr nor insolvendo and the Defender can have no Interest unless there were fraud or prejudice which the Defender cannot alleadge because the Pursuer is content that the Defender have access by his Appryzing to the Joynture Lands In so far as will satisfie his Annualrents and by the Act betwixt Debitor and Creditorâ— the Lords are impowred to restrict Appryzings to their Annualrent and so he can pretend no prejudice providing he assigne the Lady to his Appryzing in so far as he satisfies his Annualrent out of her Additional Joynture The Lords found the answer to the Reduction Relevant upon purging of the Appryzers prejudice not only by admitting him to have access to the Appryzed Lands upon Assignation as said is during the Legal but with Declaration that if the Lady Redeemed not within the Legall the Lands should be irredeemable and the Lady totally excluded Earl of Lauderdail contra Lord Oxfuird February 11. 1665. THe Earl of Lauderdail his Guidsir being Infeft in the Barony of Musselburgh which is a part of the Abbacy of Dumferling by a Gift from King Iames in Anno 1584. Excepted by the Act of Parliament for Annexation of Kirklands in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King as Heir to Queen Ann his Mother who had a Heretable Disposition of the whole Lordship of Dumferling from the King after Lauderdails first Right Lauderdail obtained Conformation of his first and subsequent Rights in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right void Which Ratification bears an express provision That it shall not be prejudged by the Act salvo jure cuâ—uslibet The Defender alleadged absolvitor in hoc judicio possessorio because his Father was Infeft by the King in Anno 1641. And by vertue thereof in possession twenty years before this persuit and as for his Ratification the Defender not being called thereto it cannot take away his Right being founded super jure communi untill the Pursuer insist in Reduction In which case the Defender shall answer but is not oblidged to answer in hoc judicio and as for the exception of the Act salvo jur It s against the common Law and the Act salvo jure is posterior without repeiting that exception The Pursuer opponed his Ratificatiom excepting the Act salvo jure which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right The Lords cannot be Judges to reduce the Sentence and Statute of Parliament as Durie observes to have been found in the Case of the Earl of Rothes and Iohn Stewart of coldinghame The Defender repeiâ—ed his answer and for these Decisions opponed the Tennor of the Act salvo jure 1633. And repeited 1661. Whereby the Lords are ordained to decide in the Rights of privat Parties according to Law without respect of Ratification or other privat Statuts in favours of particular Persons such as this which being after this decisions clears and enlarges the power of the Lords The Pursuer opponed his Ratification and exception of the Act salvo jure which bears expresly That it should stand as a publick Law and so was no privat Statute mentioned in these Acts Salvo jure The Lords having considered the Case and that such exceptions from the Act Salvo jure were of dangerous consequence to the Leidges They ordained the Parties before answer to dispute the point of Right as if such an exception of the Act Salvo jure had not been granted but they thought that Defense upon a possessory Iudgement being but a point of form whereby the Rights of Parties were not competent by exception or reply the Parliament might dispense therewith and also might repone Parties as to the matter of Prescription or quoad minor non tenetur placitare but if without these and such the Pursuer had a prior valid Right The Lords were loath to enter upon the case of
therefore ordained them to Condescend Archbishop of Glasgow contra Commissar of Glasgow Feb. 14. 1666. THe Archbishop of Glasgow pursues a Declarator or to hear and see it found and Declared that Commissars ought to be persons qualified and able to judge according to Law and that if they be not they might be deprived by the Act 1609. empowering the Bishops then restored to appoint able and sufficient men Commissars in all time coming and by the Act of Restitution 1661. whereby the like power is granted excepting Commissars nominat by the King unless he be insufficient or malversant and subsumes that Mr. William Fleming is not sufficient nor qualified for that Place and also that by the injunctions given to Commissars mentioned in the Act 1609. there is no place for Deputs unless it were by special consent of the Bishops and craves that it may be declared that the said Mr. William may not Serve by a Depute The Pursuer insisted on the first member It was alleadged for the Defender that he had his Place both from the King and Bishop Fairfoul confirming the same with a Novo damus and therefore though he might have been questioned before the said Ratification and new Gift yet now he cannot be questioned upon insufficiency but only on Malversation whereof there is no point alleadged nor condescended on nor is his insufficiency qualified by any Act of inorderly Process or injustice committed by him now these five years and as Bishop Fairfoul who acknowledged him to be a fit and qualified Person by his Ratification could never quarrel him upon insufficiency neither can this Bishop 2ly The Defender has his Place with power of Deputation and therefore having given eight thousand merks to the former Bishop for his Ratification with power of Deputation he cannot be questioned on his sufficiency being able per se aut per deputatum and no Act alleadged of injustice It was answered by the Pursuer to the first Defense that albeit this same Bishop had admitted this Commissar upon hopes of his Qualifications yet if contrair to his expectation it appears he is not qualified for so eminent a Judicature He may justly quarrel him of insufficiency as well as a Minister whom he ordained 2ly Though the same Person might not yet his Successor in Office might and is not bound to acknowledge what his Predecessor did by mistake or otherwayes to the detriment of the Sea which were in his option without a Rule or requiring Qualifications as the naming of Commissars To the Second albeit Deputs were allowable as they are not by the Injunctions yet the principal Commissar who must Regulat and answer for them must also be qualified both by the Act 1609. and the exception 1661. which enervats both the Defenders Gifts The Lords found that Member of the Lybel on the Qualifications and sufficiency Relevant My Lord Ley contra Porteous Feb. 15. 1666. MY Lord Ley having Right by progress to the Reversion of an old Wodset uses an Order and pursues Declarator thereupon The Defender alleadged no Declarator because by the Reversion there is a Tack to be granted to begin after Redemption and to continue for so many years It was answered that Tack was null and invalide not only by Common law as an usurary Paction giving the Wodsetter more then his ordinary Annualrent but by a special Act of Parliament Ia. 2. Par. 1449. cap. 19. whereby such Tacks taken in Wodsets to endure long time after the Redemption for the half mail or near thereby shall not be keeped and as by the late Act of Parliament between Debitor and Creditor it is provided that where old Wodsets were granted before 1650. when annual was at ten for ilk hundreth the Wodsetter may upon offer of Caution for the annualrent take Possession unless the Wodsetter offered himself to be comptable for what exceeds his annualrent It was answered for the Defender that his Defense stands yet Relevant notwithstanding the answer for as to the old Act of Parliament it is in desuetude and it hath been the common custom to grant such Tacks in Reversions which have still been observed and were never quarrelled neither are they usurary seing the Tacksman has the hazard of the Fruits and all burdens so his Tack-Duty how small soever unless it were elusory can be no usurary paction more then taking Lands in a proper Wodset which pay more then the true annualrent which was never found usurary 2ly This Wodset is granted since that old Act whereby the benefit thereof is totally past from As to the new Act the Clause bears expresly that during the none Redemption or none Requisition the conditions therein shall take place which cannot be extended to a Tack to be granted after Redemption It was answered that the first Act bears not only a Regulation of Wodsets already then granted but to be granted bearing expresly who takes or has taken Lands in Wodsets c. and there is nothing in the Wodset to renunce the benefit thereof As for the custom Acts of Parliament are not derogat by custom of privat parties aâ—quiescing in their agreements But the custom of the Lords by current Decisions As to the last Act it ought to be drawn ad pares casus and the Lands are not effectually Redeemed till the Tack be ended The Lords found the last Act no ground for annulling such Tacks but found the first Act a good ground if it were subsumed according to it that the â—ands were set for half Mail or thereby Lyon of Muiresk contra Gordon and others Eodem die JOhn Lyon of Muiresk having obtained Decreet of Spuilzie of certain Goods against Gordon and others they suspend and alleadge the Act of Indemnity that they took these Goods being under the Command of the Marquess of Hunlly It was answered that the Charger was in friendship with the Marquels and on his side and so they cannot Cloath themselves with the Act of Indemnity as done upon hostility 2ly The Act Indemnifies only Deeds done by Command and Warrant of any pretended Authority but here no such Order is alleadged It was answered that Orders were not given in Writ and if none get the benefit of the Indemnity but these can shewâ— or prove Orders few or none will enjoy it nor need the Suspenders to Dispute whose side the Charger was on seing they acted by Order The Lords found that it was sufficient to alleadge that the Charger was the time of the Intromission actually in Arms and acted it with a Party being then in Arms but needed not prove their Order or the application of the Goods to publick use but found it Relevant if it were offered to be proven by the Suspenders Oath that they had no Warrant or Order or pro ut de jure that they applyed them to their own privat use not for any publick use Iames Borthwick contra Ianet Skeen Feb. 16. 1666. JAmes Borthwick having obtained Reduction of Ianet Skeens Liferent-right as a
of the second must approve both and the approbation is sufficient Warrand for him to intromet and the Auditors to compt with him The Lords Repelled the Defense upon the Act of Indemnity in respect of the foresaid Exception contained therein and likewise found that the Oath subjoyned to the second accompt could not exclude the Pursuer from insisting for the Defenders Fathers intromissions ommitted out of the first accompt and wherewith he Charged not himself but found that the Defender was secure by the Act of Indemniâ—y so far as he had charged himself with and compted and found that he was not obliged after so long a time to instruct his Commission or the Warrand of the Auditors that fitted his accompts but that the approbation was sufficient to astruct the same Lady Diana Maxwel contra Lord Burley and others Feb. 15. 1667. LAdy Diana Maxwel Lady Cranburn and other Executors confirmed to the Countess of Dirletoun pursued the Lord Burley as Representing his Father for payment of a Bond granted by his Father and others to the umquhil Earl of Dirletoun for the price of a great quantity of Victual and that upon these Grounds that the Pursuers are Executors surrogat to the Countess and have licence to pursue which Countess had an assignation from the Earl to his Houshold-stuff which bore this general Clause And to his Chattel and other Moveable-goods and Gear whatsomever under which generality this Bond is Comprehended being moveable and for Victual and so is a Chattel as the word is understood by the Law of England whereby all that is not by Infeftment of Fee is comprehended by the word Chattels and belong to the Executors as Laisses c. 2ly The Countess was nominat universal Legatrix in the Earls Testament and thereby has Right to this Moveable-bond 3ly As Relict she has Right to the half It was alleadged for the Defender no Process upon any of these Titles First Because the assignation cannot be extended to this Bond neither is the word Chattels to be Interpret according to the Law of England the assignation being made by a Stots-man and made in Scotland after the Scottish manner 2ly The Pursuers as Executors to the Countess cannot pursue upon the universal Legacy the Debitors of the Defunct but only the Defuncts Executorsâ— because this Bond is yet in bonis primi defuncti and must be Confirmed 3ly The Relict cannot pursue the Debitors for her half but at least she must call the Executors The Lords found both the last Alleadgences Relevant but as to the first before answer they ordained the Pursuer to adduce what Evidences they had to instruct the signification of the word Chattels by the Law of Englâ—nd in respect it was notour to them that the Lord Dirletoun beìng a Servant of the Kings lived the most part of his time in England and in Scotland there is no use of the word Chattels Isobel Glen contra Iohn Hume Feb. 19. 1667. ISobel Glen as assigney by Mr. Edward Jameson having obtained Decreet against the umquhil Earl of Hume for certain by-run Stipends and thereupon having arrested in my Lord Whitekirks hands certain Sums due by him to the Earl of Hume She now pursues to make forthcoming Compearance is made for Iohn Hume who produces an assignation by the Earl of Hume to the sums due by Whitekirk and also produces a Gift of the Earls Liferent-Escheat and alleadges first No Process at the Arresters Instance because the Earl of Hume being dead the Debt must be first Establisht by a Decreet against one Representing him who must be called principaliter before the Person in whose hands the arrestment is made can be decerned to pay that which was the Defuncts 2ly Iohn Hume must be preferred as Donatar because the arrestment was laid on after the Earl of Humes Rebellion by which his Goods belonged to the King and no Sums can be made forth-coming as belonging to him after the Rebellion because they belonged to the King It was answered to the first That if the Earl of Hume had not dyed at the Horn the Pursuer would have either Confirmed as Exâ—cutor Creditor or called the Earls Executors but that is not necessar seing the Earl died at the Horn and could not have one to Represent him in mobilibus and that now the Donatar who succeeds compears To the 2. the Pursuer as Arrester ought to be preferred because albeit the arrestment be after the Rebellion yet it is before the Gift or Declarator and it is for a Debt due by the Earl before the Rebellion and so doth exclude the Donatar for which they produced a Decision marked by Dury Pilmour contra Gaigie In which case the Gift was granted by a Lord of a Regality having the benefit of the Escheat whereanent the Lord Advocat Represented that this could not be drawn in consequence to prejudge the King or his Donatar because the Lord of Regality being a Subject debuit invigilare sibi by declaring the Rebellion without delay but the King cannot so soon know nor is he prejudged by the neglect of his Officers Yet the â—ords uâ—animouslie preferred the Arrester the Advocat forbearing to Vote for they tâ—â—ught the câ—se of Creditors for Debts before Rebellion were not to be prejudged â—â—â—ng Diligence before Declarator or if they should Poind Arrest Adjudge c. Cranstoun contra Wilkiâ—on Feb. 20. 1667. BY Contract of Marriage betwixt Wilkison and his Spouse he is obliged to Infeft her in a Tenement exprest therein and in all the Conquest during the Marriage which Infeftments were to be taken to them the longest liver of them two in Conjunct-Fee and their Heirs betwixt them Which failzing to the Heirs of the Mars Body Which failzing to the Wifes Heirs whatsomever after which the Husband purchâ—sed a piece of Land but took the Infeftment thereofâ— to him and his â—ife and the heirs betwixt them Which â—ailzing to his own heirs whatsomever omitting the wifes heirs This Cranstoun obtains hiâ— self Infeft in this Conquest Tenement as Heir to the Wife and thereupon obtained Decreet for Mails and Duties Wiâ—â—ison as Heir to the Husband pursues Reduction of the Decreet on these grounds first That Cranstouns Infeftment as Heir to the Wifeâ— was null because the Wife was not Fiar but Liferenter 2ly The Wife having accepted of an Infeftment posterior to the Contract without mention of her Heirs that innovat the Provision of the Contract and excludes her Heirs It was answered first That the Man and Wife being Conjâ—nct fiars the Wife was Fiarâ— and the Man but Life â—enter because the last Termination of Heirs whatsomever Terminat upon her 2ly Albeit Cranstoun had taken his Infeftment wrong Wiâ—kison cannot quarrel the same because he as Heir to Wilkison was obliged to Infeft him as Heir to the Wife and to the posterior Inâ—eftment it is contrair to the provision of the Contract of Marriage and there does appear no accepting thereof by the Wife 3ly Cranstoun is
wayes secure contra acquirenda unless the Assignation or Disposition had been equivalent to the Debt and satisfied it The Defender answered that that which was here Acquired was only a Fee for Service which is Alimentar and the Fee will not be due unless the Defender Serve in suitable condition effeirand to his place and therefore it cannot be made forth coming to any other use The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service could not be reached by his Creditors to whom he had made cessionem bonorum except as to the superplus more then what was necessar and they found no superplus in this case Captain Allan contra Parkman Eodem die CAptain Allan having taken Bartholomew Parkman and obtained him to be declared Prize Parkman raises Reduction and for fortification of the Admirals Decreet of Adjudication these Grounds were alleadged First That by the Testimonies of the Steirsman and Company it was proven that three of the Company were the Kings Enemies and so conform to the Kings Declaration of War Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies this Ship was Prize as was lately found in the case of the Ship called The Castle of Riga And albeit by a former Interloquitor the Lords had not found three men to be a number sufficient for Confiscation Yet it was not then considered that the whole Company consisted but of eight so that near the third of the Sailers were the Kings Enemies and one of them the Steirsman which is a considerable proportion 2dly This Ship though pretended to belong to the Swedes yet she had served the Kings Enemies the Danes and Hollanders two years and by the Swedish Treaty it is provided quod naves nullo modo accommodentur utriusque foederati inimicis 3dly It is also proven that this Ship carried Counterband-goods viz. Tar which was not the product of Sweden but carried from Denmark to Holland and that she was taken in her return having in a loadning of Salt from France so that albeit the Ship had been empty she might have been taken Prize in that same Voyage in which she did partake with the Kings Enemies or being taken in the same Voyage in which she had carried bona hostium And lastly it was also instructed that the Cargo with which she was taken was the product of the Counterband-goods and so in the same case as if the Counterband-goods had been actually in her the product being surrogatum quod sapit naturam surrogati It was answered for Parkman to the first Ground that he opponed the Lords Interlocutor finding three Sailers no sufficient number for Confiscation And in the case of The Castle of Riga the major part at least the half were the Kings Enemies To the second Ground it was answered that the Kings Allies making use of their Ships for Fraught was no way a lending of them to the Kings Enemies and as for the remnant Goods by the Kings Declaration of War there is only given Warrand to sease Ships having in them Counterband-goods or Enemies Goods and the Swedish â—rety bears expresly si deprehenduntur so that this Ship having in her when she was taken no Counterband nor Enemies Goods is free It was answered that the Kings Declaration although it mention some cases of Seasure is not full or exclusive but the Law of Nations must take place or the Custom of Scotland in cases not exprest in the Kings Declaration And as for the Swedish Treaty it cannot be pleaded unless Parkman had a Pass from Sweden in all points conform to the Treaty but their Passes were in several things disconform as being granted when the Ship was in Holland and sent over Land And as for the Custom of Scotland to take Ships in the return of that Voyage in which they carried Counterband or prohibited Goods it appeareth by the Captains Commission and former Commissions in Anno 1628. and by a Decreet declaring a Prize wherein the same ground was Libelled that she was taken in the return of that same Voyage in which she had carried Counterband And the Lords having Written to my Lord Secretary his Letter in return bears That the Lords should decide according to the Law of Scotland It was answered for the Stranger that the particular Custom of Scotland can be no Rule for the Swedes but only the Law and Custom of Nations â— and that England nor no other Nation hath that Custom to make Seasure but in delicto otherwise all Trade and Commerce would be destroyed unless Seasure were only upon what were visibly Aboard and not upon the pretence of what had been Aboard and albeit a Delinquence once committed by partaking with the Kings Enemies might endure for a longer time Yet the Custom of Nations for the utility of Trade hath Abridged it to actual Seasure in delicto and accordingly Judge Ienkins Judge of the Admirality in England hath Attested that during this War after search of the Records and Conference with other Judges he knows not of any Prize declared but when the Counterband goods or Enemies Goods were taken actually in them And for the Decreet alleadged on albeit that Ground be in the Libel yet other Grounds are also therein and there is no Debate as to that particular Point neither doth the Probation mentioned in the Decreet clear that that Point was proven And as to the Tenor of the Commissions albeit they might excuse the Captain from Fine or Damnages yet Strangers did not nor were not obliged to know the same but the Law and Custom of Nations and the Kings publick Declaration of the War and their Treaties The Lords having considered the Debate and that the several Points were of Importance and Preparatives they resolved to take the Grounds joyntly and so found the Ship Prize as having so considerable a proportion of her Company the Kings Enemies Some also were of the opinion that she having been taken in the return was sufficient especially not having a sufficient Swedish Passâ— but the plurality waâ—ed these Points whether the returns of Enemies Goods or Counterband or whether the Product or not Product thereof were sufficient Grounds of Seasure seing it did not so appear by the Custom of Nations or the Kings Declaration of War but by the former Debate it appeared that she had Aboard when taken a small parcel of Tar. Mr. David Falconer contra Sir Iames Keith Iuly 14. 1668. MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam that he being in the exercise of his Office informing the President to stop a Bill of Suspension given in by Sir Iames Keith Sir Iames did revile and threaten him calling him a Liar and a Knave and saying if he found him in another place he would make him repent what he said The Lords having received Witnesses in their own presence and finding it proven sent Sir James
Lord Argile not to insist against the Vassals who had been Loyal It was answered for the Earl that he had given no just grounds to his Vassals to expect that though they were in his power that he would destroy them and annul their Rights and seing His Majesty had fully and absolutely entrusted them to him they ought to have rested upon His Kindness and Generosity and not to have made all this Clamour where they have no Legal Defense it being no strange nor new thing for the King to give Gifts of Forefaulture without any Reservation of Vassals who had no Confirmation from the King yea many times without any Reservation of the Forefault Persons Debt and His Majesty has lately so done to the Marquess of Huntly to whom he gave the Estate of Huntly without Reservation either to Vassals or Creditors and that upon the Forfaulture of the Marquess of Argile who had Right to and was in Possession of the Estate of Huntly for vast sums of Mony and the Earl of Argile has the Gift of the remainder of his Fathers Estate with the burden of more Debt then the proper Debt of the House of Argile would have been over and above the Debts undertaken for the House of Huntly 2dly Whatever the Vassals might plead in Point of Favour yet they do not pretend to a Defense in Law And the Lords being Judges of the Law ought not to stop the Course thereof upon the Insinuations of any Party otherwayes they may deny the Course of Law to any of the Leidges when they please upon the account that they think the Law hard or rigorous or the Kings grants made conform thereto and whatsoever the Lords might do in the dubious Interpretation of a Treaty of Peace to know the Kings meaning yet in claris â—on est locus conjecturis nothing can be clearer then the Kings meaning under His Great Seal and all the Defenders can pretend is Favour which is no Point of Right nor legal Defense The Lords granted Certification eâ—nâ—ra non producta conditionally that what the Vassals should produce betwixt and the tenth of November should be received and left it to the Vassals in the mean time if they thought fit to make Address to the King that he might interpose with the Earl in their Favours or to Debate any thing they thought fit when the Earl insisted for Reduction of their Rights for want of Confirmations or for Mails and Duties Agnew contra Tennents of Dronlaw Eodem die AGnem having Appryzed the Lands of Dronlaw from Mr. Robert Hay Advocat as Cautioner for the Earl of Buchan to the behove of the Earl of Kinghorn pursues the Tennents for Removing who alleadged Absolviture because the Tennents were Tennents by payment of Mail and Duty to the Liferenter Mr. Robert Hayes Mother and she is not warned nor called The Pursuer answered that the Liferenter dyed before the Term and that he was content that the Tennents should be Decerned to Remove but at the next Term of Whitsonday Yet the Lords Sustained the Defense seing the Liferenter was living the time of the Warning Farquhar contra Magistrâ—tes of Elgin Iuly 2. 1669. FArquhar having caused a Messenger Charge the Magistrates of Elgin to take my Lord Lovat and the Baillies being together upon the Street about eight or nine a Clock in the Morning the Messenger with several other Persons present Charged them to go into an House near by which they designed to them and to take Lovat being then in Bed and the Messenger offered to go with them and enter first yet the Bailies did not obey but said they would go at their conveniency when they had conveened their Neighbours to assist there is an Execution and Instrument upon the back of the Caption to the effect foresaid produced whereupon Farquhar pursues the Magistrates for Payment of the Debt contained in the Caption The Defenders alleadged Absolviture First Because they were no further obliged but to conveen the Neighbours of the Town and send them with the Messenger to assist which they offered to do 2dly Albeit themselves were obliged to take the Rebel if he were showen to them within their Jurisdiction yet they were not obliged to search every House of the Town for him or to enter within closle Doors 3dly The Lord Lovat being known to be a fierce young Man who ordinarly had a Minzie attending him they were not obliged to adventure upon him without calling the assistance of their Neighbours which they did within an hour or two thereafter and he was gone The Lords Repelled all these Defenses in respect of the Execution and instrument produced and found the Magistrats being Charged obliged to take the Rebel and without delay to search any House within the Town that was particularly shown to them unless they had been Repulsed by Force or the Doors by Violence keeped closse against them by the Master of the House and ordained the Pursuers to adduce the Witnesses in the Instrument and others to prove the particulars foresaid to have been so done as is therein exprest Bow contra Campbel Eodem die BOw Stabler in Edinburgh as Assigney to a Sum of Money due by Glenurchy and also as Donotar to the Escheat of his Cedent being called in a double Poinding and competing the Donator alleadged he ought to be preferred to the Arrefter because the Debt in question falling in his Cedents Escheat he had taken the Gift of the Escheat bearing expresly all Goods the Rebel had or should acquire and this Debt being acquired after the Gift did accresce to him the Rebel not being yet Relaxed It was answered that though the stile of the Gift bear all Goods to be acquired yet that is always interpret such as happen to be acquired within year and day after the Horning It was answered for the Donatar that he oppones the Tenor of his Gift and if any limitation could be thereof it could only be of Sums to be acquired within a year after the Gift and not within a year after the Horning because sometimes Gifts are not taken within a year of the Horning The Lords found the Gift to extend to the Sum in question being acquired by the Rebel within a year after the Gift and that the general Clause of Goods to be acquired did extend no further then to Goods acquired within a year after the Gift Laird of Grubbet contra More Eodem die THe Barony of Lintoun belonging to Sir Iohn Ker of Litledean the Lands of Morbatle and Otterburn are parts thereof there is a piece of Land called Greenlaw lying in the borders of Morbatle and Otterburn and there is an Heretable Right of the Lands of Otterburn granted by Sir Iohn Ker to one Young and by that Young a subaltern Right to another Young bearing the Lands of Greenlaw per expressum both these Young's joyntly Dispone to Grubbet the Lands of Otterburn with the Pertinents comprehending the Lands of Raschbogs in
from the Marquess of Hamiltoun upon Blackwoods Resignation and upon the Resignation of two Apprizers in Anno 164â— The Marquesse then having a Right to the Superiority granted by the King in Anno 1636. Which albeit it was not then valide because the Lands were then annexed to the Crown by the Act of Parliament 1633. and were not Dissolved yet the Major having taken Infeftment as to his part his Heirs could not quarrel the Superiority though the King might and now the King and Parliament by the Act 1661. having declared such Rights of Superiority valide as to these Vassals who had or should Consent and the Duke having gotten a new Right of the Superiority since the Act the former Consent is valide Likeas William Lowry Blackwoods Father and Tutor gave a Bond that so soon as the Duke should obtain the Superiority the Son should become Vassal The Defender alleadged that his Fathers Bond was only effectual against his Father but not against himself and his Father never being Feear of the Estate his Bond could never be a Consent of the Vassal neither can the Consent of any Tutor or lawful Administrator be sufficient to give such a Consent which is not an Act of Office or Administration and as to the Infeftment taken by Major Ballantine First The simple taking of Infeftmen from a Lord of Erection by the Vassals of Kirk-lands cannot import their passing from the King and the benefit of the Act of Annexation so that they may not return to the King thereafter neither can it be such a Consent as it is meant in this Act of Parliament otherwise the King and the Leidges should both losse the benefit of the Annexation seing most part of the Vassals have continued to take Infeftment of the Lords of Erection through ignorance or inadvertance finding their Infeftments flowing from the Lords of Erection and in respect that the Lords of Erection have still Right to the Feu-duties till they be Redeemed which being a common Error that they may safely so do till the Redemption and yet may still take Infeftment from the King when they please it were a very evil consequence if thereupon they should not only lose the benefit to be Vassals to the King but by disclamation lose the Property 2dly As to this case it cannot be presumed but Major Ballantine is in the same case with other Vassals of Kirk-lands and also in this much better case that he is in a manifest and palpable Error in so far as the Disposition that he takes from the Apprizers bears expresly that the Apprizers are informed that the Marquess of Hamiltoun was Superior and their Procuratory bears warrand either to Resign in the Kings hands or the Marquess hands or in the hands of any other lawful Superior and Blackwoods Procuratory in the Contract of Marriage bears warrand to Resign in the hands of the King the Marquess of Hamiltoun or the Earl of Roxburgh who had Right of Erection before the Marquess or any other lawful Superior so that by Resigning in the Marquess hand it is evident that the Resigner and the Major believed that the Marquess was Superior whereas he was not any Right he then had being absolutely null by the Act of Annexation 1633. and the King was the only Superior yea by the taking of that Infeftment he incurred disclamation unless it were excused by his error but the Consent requisit here must be such as the Party knowing the King was his Superior did choose to interject another Superior and become his perpetual Vassal It was answered for the Pursuer that the acceptance of the Infeftment as it is now stated can be no Error because it is evidenced by the Apprizers Rights now produced that they hold of the King and were Infeft by him and yet the Major took the Infeftment upon their Resignation in the Dukes hands likeas the Rights produced relate to the Right of Annexation which being a most publick Law and recent at that time cannot be thought but to be known to any at that time ignorantia juris neminem excusat It was answered that the Error was the greater that the Apprizers Infeftment was holden of the King seing in their Disposition and Procuratory they mention they were informed the Marquess was Superior and therefore the Procuratory is to Resign in the hands of the King the Marquess or any other lawful Superior and the other Procuratory is in the like Terms so that the Accepter of the Writs did not intend nor do any new or free Deed in favours of the Marquess but did only that Deed that they supposed was necessar and so did not by this Infeftment make the Marquess Superior as that his Right should be valide by their Consent but did take the Right from the Marquess as being Superior before they took it which was an palpable Error so prejudicial to them that it might infer disclamation if it were not excusable upon Error and if it had been intended that the Major minded to make the Marquess his Superior where he was not there is no doubt but it would have been exprest in the Right it self being so great a deference to the Marquess and would not have been past over in common Form neither can it be thought that this was procured by the Marquess upon accompt and favouring the Major the Infeftment being granted by the Lady Marquess as her sons Commissioner he being then in England and having no great influence then being the time of the Troubles of the Countrey It was answered that the other Vassals of that Barony did voluntarly Accept the Marquess as their Superior and gave Bonds for that purpose which are produced and it is most like that Blackwood hath given Bond which hath been lost or given up to him upon taking this Infeftment which is an implement thereof The Lords did not see that the single taking of the Infeftment from a Lord of the Erection did import his Consent to become Vassal thereby for ever or that he might not thereafter return to the King neither did they find such a Consent as is meant in the Act of Parliament but considering the whole Circumstances of this Case and especially the Fathers clear Bond who procured and settled the Controverted Right of this Estate for his Son then an Infant they found there was no Error but a choise of the Marquess to be Superior in place of the King and therefore declared Lesly contra Cunningham Eodem die LEsly having Arrested certain Sums for payment of a Tack-duty due to him It was alleadged for the Party in whose hands Arrestment was made that the Arrestment could not reach any further then for the Tack-duty Arrested which was due the time of the Arrestment but not for any Term following the Arrestment because Arrestment being a Legal Execution can no more proceed upon a Debt before the Term that the Debt be due then Apprizing and further alleadged that they had made payment
his own and was not in his Family and albeit he were not eager to put his Father out of Possession of his House and Lands yet his continuance of Possession is not Relevant unless it had been to his death or for a longer time but any delay that was is because it is but of late that the Doctor hath obtained special Declarator till which he was not in capacity to discontinue his Fathers Possession Neither can Members of Court be admitted to prove that the Father wared out the Expence and procured the Gift because the Doctor at the passing of the Gift gave a Back-bond that he being satisfied of the Debts due to him and the Expences thereof there should be place for the Rebels Creditors and did make Faith at the passing of the Gift that it was to his own behove after which no Winesses can be admitted against him nor any other presumptive Probation of the simulation of the Gift Which the Lords found Relevant and found also the Pursuers Reply upon the Back-bond alleadged granted by the Doctor to his Father Relevant to be proven by the Doctors Oath only Sir Iohn Vrquhart Supplicant December 7. 1669. SIr Iohn Vrquhart gave in a Supplication to the Lords bearing that he being Cited before the Council upon several alleadged Riots and fearing that he might be excluded from appearing in his own defense by hornings against him therefore desired that the Lords would grant Suspension of all Hornings against him ad hunc effectum only to give him personam standi in judicio but prejudice to the Creditors of all other execution Which desire the Lords granted as to all Hornings he should condescend upon Pittrichie contra Laird of Geight December 15. 1669. MAitland of Pittrichie having obtained the Gift of Recognition from the King of certain Waird-lands held by the Laird of Geight of His Majesty pursues Declarator of Recognition upon Geights Alienation of the Lands wherein compearance was made for the Purchasers thereof who alleadged Absolvitor because the time of their Alienation by the Law and custom in force for the time Such Alienations without consent of the Superiour were valide The Pursuer answered that any Law or Custom that then was is now Annulled and Rescinded as from the beginning The Defender answered that no Laws of whatsoever Tenor can be drawn back by invalidat Deeds done by the Law and Custom for the time especially as to Matters Penal such as Recognitions so that Parties having acted bona fide according to any thing they could know for a Rule cannot fall in the Penalty and certification of Recognition which imports a contempt of the Superiour and cannot be inferred by any Deed legal for the time The Pursuer answered that the contempt is the same when the Vassal alieâ— natâ— his Fee without the Superiours consent and when such Alienations being by Law become void and the Superiours Right of Recognition revived the Vassal did not after that time crave the Superiours Confirmation as Heir so he Laird of Geight having never sought Confirmation from the King since His Restauration it is no less contempt than if since the Kings Restauration he had Alienat especially seing the King refuses Confirmation to none who demand it It was answered for the Purchasers that the Vassal being Denuded in their favour according to the Law standing for the time his fault cannot lose their Right for though he should collude against them yet that ought not to prejudge them and there being no obliegment upon the Vassal to seek a Confirmation to the behove of the Purchasers they cannot be prejudged for not obtaining the same The Pursuer answered that the Purchasers might have craved the Kings Confirmation of their Right both for themselves and in name of Geight the immediat Vassal which Geight neither would nor could oppose The Lords Repelled the Defenses in respect of the Reply that no Confirmation was craved neither by the Vassal nor Purchasers his Sub-vassals which they might have done if they had pleased and therefore declared the Lands to be Recognosced Innes contra Innes Ianuary 5. 1670. Innes having granted an Assignation of an Heretable Bond of 6000. merks 4000. merks thereof to Robert Innes his eldest Son and 2000. merks thereof to William and Ianet Inness his younger Children and in case of Roberts Decease providing his part amongst the rest equally Ianes having died before Robert her Heirs and Roberts Heirs compet for the sum for Robert died without Children and William as Heir to Robert claimed the whole sum upon this Ground that Ianet being substitute by the Father to Robert without any mention of Ianets heirs Ianet having died before Robert she had never right and her Substitution became absolutely void and her Heirs not being exprest this Substitution cannot extend to them because though ordinarly Heirs are comprehended though not exprest qui acquirit sibi acquirit suis yet here is no Acquisition but a voluntary Substitution whereby it may be rationally conjectured the mind of the Defunct was that he would prefer Ianet to Roberts Heirs of line not being Heirs of his Body but not that he would prefer Ianets Heirs which were a degree further from his own other Bairns And the case of Substitutions in the Roman Law was urged that if the Substitute died before the Institute the Substitutes Heirs have never place It was answered that Institutions and Substitutions with us do far differ from the Roman Substitutions whereby if the Institute succeed the Substitute has never place as Heir to the Institute but the Institutes Heirs whatsomever which failing the Institute is there interpret so that if the Institute never be Heir then the Substitute has place as Heir of Tailzie and provision to the Substitute so that here Ianets Heirs are Heirs to Robert who had no Heirs of his Body and do exclude William his Brother and though Ianets Heirs be not mentioned yet they are understood and comprehended because in Tailzies and Provisions there uses never to be an Institution or Substitution of a single person without the Heirs of their Body And though there be some singular Cases in which Heirs not being exprest are not comprehended this is none of them It was further alleadged for William that William and Ianet being Substitute joyntly Ianet deceasing before Robert her share accresces to him jure accrescendi ex conjuncta substitutione It was answered that there is here only substitutio conjuncta verbis but disjuncta rebus for the sum is declared to belong to William and Ianet equally so that each of them has but Right to a half The Lords preferred the Heirs of Ianet and found that they had Right as Heirs of Provision to Robert and that they ought to be served to him and not to Ianet who had never Right her self having died before she was or could be Heir to Robert Elizabeth and Anna Boids contra Iames Boid of Temple Ianuary 6. 1670. JAmes Boid of Temple in his
have been addicted to any such base Acts formerly albeit the Petitioner and his Friends are ashamed in his behalf to plead any exemption from his deserved punishment which his riper years may cause him detest and abhore as an offence to the saids Lords and Scandal to his Friends and prejudice to the Party offended which the said Party offended willingly forgiveth out of respect to his Friends Therefore humbly desiring that the saids Lords for preventing such a publick Stain upon the Petitioner and his Friends by the said publick disgrace upon a youth of his years would be pleased to 〈◊〉 his Sentence as to the way and manner of the disgrace and infamy by 〈◊〉 his Imprisonment upon the Supplicants Charges till there be an occasion for Transporting of him beyond Seas or where the saids Lords shall judge convenient whether by way of banishment or otherwise during then Pleasure for which effect the Supplicant shall be obliged by Bond if the Loâ—ds shall require the same and in the mean time to be favourably pleasâ—d to discharge the Execution of the said Sentence Which Supplication being considered by the sâ—ids Lords they by their deliverance thereupon of the 16. of thus Instant granted Warrant to the Magistrates of Edinburgh to continue the execution of their Sentence pronounced against the said Hugh Riddel until VVednesday the 21. of this Moneth betwixt and which time if he should find sufficient Caution to contiâ—â—e in Prison upon his own Charges until an occasion shall offer for his Transportation to his Majesties Plantations in America and that he shall then remove to the saids Plantations and not return to this Kingdom under the pain of five thousand merks Scots Money to be disposed of as the saids Lords shall think fit in case he contraveen In that case the Lords declare they will dispense with the execution of their former Sentence and if Caution were not found to the effect foresaid betwixt and the said day they ordained the formerâ— Sentence to be then put in execution Likeas this day the Lords having considered a Bond of Cautionry produced subscribed by the said Iohn Riddel dated the 19. day of this Instant and finding the same to be conform to their foresaid deliverance therefore they have dispensed and hereby dispense with the execution of their former Sentence pronounced against the said Hugh Riddel upon the 15. Instant and grants Warrant to the Magistrates of Edinburgh to deliver the Person of the said Hugh to the said Iohn Riddel when he shall desire him in order to his Transportation ACT anent passing of Bills for liberty out of Prison Iuly 21. 1675. THE Lords considering that oftentimes where Parties have done ultimate diligence against their Debitors by apprehending them with Caption and Incarcerating them Bills of Suspension and Charges to set at liberty are presented and past in favours of these Persons without the knowledge of the Creditors at whose Instance they are Incarcerat and to their great prejudice thereby frustrating the diligence done by them For remeid whereof the Lords ordain That in time coming when any Person intends to give in a Bill of Suspension and Charge to set at liberty that he shall make previous Intimation of the same to his Creditor at whose Instance he is Incarcerat or arrested in Prison Personally or at their dwelling place by a Nottar before Witnesses mentioning the time when the Bill shall be presented in case the Creditors be within the Kingdom for the time and that the Instrument of Intimation to the Creditors under the Nottars hand be produced with the Bill of Suspension and Charge to set at liberty when the same is presented to the Ordinary upon the Bills otherwayes that the Bill be not past And the Lords ordain the Intimation to be special in the time when the Bill shall be presented being within the latitude of a Week that the Creditors may be at a certainty when to attend the same ACT concerning the granting of Protections February 1. 1676. THE Lords considering that divers Persons who are under the hazard of Caption for Debt pretending that they are cited to bear Witnesse in Processes depending before the Lords do upon production of a Charge given to them for that effect under Messengers hands procure Warrants from the Lords to Discharge the execution of Letters of Caption and Acts of Warding against them for some time albeit they be not made use of as Witnesses but only the said Charge impetrat by them from a Messenger that they may obtain the foresaid Warrant For remeid of which abuse the Lords declare that in time coming they will grant no Warrant for stopping of execution of Letters of Caption or Acts of Warding upon that ground that the Craver thereof is cited as a Witness in a Process unless with the Petition there be given in a Declaration under the hand of the Party Pursuer or Defender who adduces the Witnesses bearing that the Person who desires the said Warrand is really cited at his instance as a VVitness and that he is a necessary VVitness And the Lords declare they will fine the Party who gave the said Declaration if at the conclusion of the Cause it appear that there was Collusion in giving the same it being only done that the said Person might obtain a Personal Protection His Majesties Letter concerning the Clerks Iune 20. 1676. CHARLES R. RIGHT Trusty and well beloved Cousins and Counsellers Right Trusty and well beloved Counsellers and Trusty and well beloved We Greet you well We have often evidenced Our Affection to and Care of you the Senators of Our Colledge of Iustice and as VVe have Trusted you with the Distribution of Iustice and the preservation of the Rights and Properties of Our Subjects in that Kingdom according to Law and are very confident of your equal and expedite procedor in Iustice to all Our Subjects which is the most acceptable Service you can perform to Vs So VVe will suffer none of Our Subjects to reproach your Procedor much lesse these who serve before you and by your Favour and VVarrand have the priviledge to procure and plead for others who if they should be permitted to defame your Sentences might prove the unhappy Instruments to lessen the Honour and Confidence which hath been alwayes attributed to that Senate by Natives and Strangers and might diffuse the Leaven of Male-contents amongst Our People as if their Rights and Interests were not securely lodged and thereby make them more capable of evil Impressions and desirous of change And We do Require you by all means to suppresse and prevent all mutinous Courses which you have prudently adverted to and obviat by your Act of Sederunt of the 5th of January last wherewith We are very well satisfied And We do leave the Advocats and others of the Colledge of Justice to be Ordered by you in all things relating to their Imployments And We do further Require you to prevent and punish all Conbinations and
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
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
Party willed not nor consented not to the Right and if by such Interruptions Parties got wrong it was their own fault who did not either declare their Right or insist in a molestation debito tempore or use mutual Interruptions but here it was considered that Possession before the year 1610. would be equivalent to Immemorial Possession albeit the Witnesses were not positive upon 20. Years Possession before in respect the Years were 50. Years since Children of Wolmet contra Dowglas and Cuningham November 20. 1662. IN a Persuit at the instance of the Children of Wolmet for the Profit of the Coal of Wolmet intrometted with by the said Iean Dowglas Lady Wolmet in her Viduity by vertue of a Tack of the Coal granted by Umqhile Wolmet to his Children for their Portions it was alleadged for the Defender First absolvitor because the said Iean had right to the said Profit of the said Coal ever since her Husbands Death by vertue of the Wodset of the Lands and Coals of Wolmet granted by Umquhile Patrick Edmonstcun of Wolmet to Iames Loch wherein there is a Back-tack of the Land and Coal set to the said Umquhile Wolmet and the said Iean his Spouse for the Annualrent of the Money It was replyed for the Pursuer that the foresaid Back-tack was taken by Wolmet stante matrimonio and so was donatio inter uirum uxorem null in it self nisi morte confirmetur and was confirmed by Wolmets Death but Revocked by the Pursuers Tack granted to his Children after the said Back-tack It was answered for the Pursuers that the reply ought to be repelled because the Back-tack was no Donation but a permutation in so far as the Lady by her Contract of Marriage was Infeft in the half of the Lands of Wolmet which Infeftment she renounced in favours of Iames Loch at the taking of the Wodset and in lieu thereof she got this Back-tack which therefore can be no Donation which must be graâ—uâ—tus without a cause onerous It was replyed by the Pursuers that the duply is not relevant for albeit it be not a pure Donation yet quoad excessum the superplus of the benefit of the Back-tack above the benefit of the Contract of Marriage is gratitude and a Donation and the reason of the Law against Donations betwixt Man and Wife being mutuo amore se spolient it holds in it and it would be easie to allude the intent of that good Law if Donations contrived under the way of permutation without any real equalitie were allowable It was answered for the Defender that the duply stands relevant and the superplus of a permutation cannot be called a Donation more then the benefit of an advantagious Vendition it is true that if the Donation of the Back-tack had been ex intervallo after the Ladies Renounciation it would have been vincus Contractus but two distinct Donations or if the matter exchanged had been aliquid ejusdem specei as an Annualrent of 500 merk with an Annualrent of a 1000 lib. the superplus would have been a Donation or if the Lady had received a notable excess above the half yea above the third of what she quat it might have been revocable by her Husband she being reponed to her first Condition by her Contract of Marriage but here there is no such exorbitant excess she having quat a certain Land Rent for the profit of a Coal which is most uncertain for the hail Land Rent would not pay the Back-tack and it is now Wodset and likewise she is personally lyable for the Back-tack Dutie The Lords repelled the Defense and Duply in respect of the Reply and Triply and found the Excess so considerable in this case that it was as a Donation and was revocked by the Childrens Tack but found that before the Defender made payment of what should be found due by this accompt she should be reponed and put in statu quo prius by her Contract of Marriage It was further alleadged for the Defender absolvitor because that albeit her Right by the Back-tack were revocked by the Childrens Tack yet she is bona fide possessor fecit fructus consumptos suos according to the Law of this Kingdom and of most of other Nations necessarily introduced for the good and quiet of the People because as to and profits they spend as they have and therefore what they spend bona fide by a colourable Title they are secured in that albeit their Title be taken away yet they shall not be called in question for what they have injoyed bona fide before Sentence or Citation It was answered for the Pursuers that the Defense was not relevant in that case where the Question is not of industrial fruit but of natural fruit such as Coal Secondly it is not relevant unless it were cum titulo not ipso jure null but here the Defenders Title being a Donation betwixt Man and Wife is by the Civil Law which herein we follow null in se nisi morte confirmetur Thirdly there must be bona fides which is not here because it is instructed by a minute of a Contract produced within five moneths before the Childrens Tack that the Lady consented to the providing of the Children by the profit of the Coal and she cannot be presumed ignorant of so Domestick an affair in favour of her own Children done by her Husband and she hath given up an Article in her accompt of the expense of Registrating the Childrens Tack by her self and so she must be presumed to have possessed as protutrix for her Children and not to Defraud or Exclude them It was answered for the Defender that the defense stands yet relevant and the Law makes no difference betwixt Industrial and Natural Fruits he who possesses Lands bona fide is no more comptable for the Grass that growes of it self nor for the Corn that he labours for 4. And Coal is an industrial Fruit having as much pains and expense as Corns and other industrial Fruit and more uncertainty as to the Title albeit be valid yet sufficit coloratus velâ—putativus titulus and albeit in the antient Roman Law such Donations were null in se nisi confirmentur morte yet by the subsequent course of the Law per oraâ—ionem Antonij they are declared valid in themselves unless they be revocked and therefore are not null but Anullantur medio facto and there are many nullities which may consist with a colourable Title ad hunc affectum lucrari Fructus consumptus as if the nulitie be not ex defectu substantialium but by defect of some solemnity as the not Registration of a Seasine will not make it so null but that possessor bona fide thereby will imploy the Fruits but if it want tradition of the symble it will be null in se but here such Donations have all there essentials but they are only anullable by a subsequent fact and as to the Evidence that the Lady was in mala fide they
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ— because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâ—dm creaâ— oruâ— but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâ—ght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâ—e sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
Reduction of that Disposition as being done in lecto Aegritudinis It was alleadged for the Defender primo Minor non tenetur placitare de Haereditate Paterna The Defender is Minor and now the Question of Reduction is upon her Fathers Heretage It was Answered that the maxime holds not where the Question is of the Disposition made to the Minor whether valid or not but where the Question is not upon the Minors Right but upon the Fathers Right which Right of the Fathers or Predecessors the Minor is not holden to Dispute The Lords repelled this Defense in respect of the Reply 2dly It was alleadged absolvitor because the Pursuer having only a Personal Provision in his Favours conceived in the Contract of Marriage and there being as yet no Infeftment to Heirs Male the maxime that no deed upon Death-bed can be prejudicial to Heirs can be extended to none but such as are Special Heirs and not to those who are by destination Heirs which is less then if a Charter had been granted to the Heir Male which according to Craigs Opinion is but as nudum pactum and an uncompleat Right and could not compell the Heirs of Lyne to Resign The Pursuer answered that the maxime is general and there is no Distinction by Law or Custome whatsoever the Heirs be so that a Person having a Right to Heretable Bonds bearing Clause of Infeftment whereupon no Infeftment had followed could do nothing upon Death-bed in prejudice of the Heirs who would have succeeded unto those Bonds as to Craigs Opinion of a Charter it is against Law and the common Opinion now received that a Charter or any Provision in Write is effectual against the granter and his Heirs to compel them to compleat the same The Lords repelled this Defense 3ly It was alleadged absolvitor because the maxime can be only understood of the Heir of Lyne as nearest of blood so that nothing can be effectually done in their prejudice but here the Diposition is but in prejudice of an Heir Male and in favours of an Heir of Lyne in respect of whom the Heir of Male is but a Stranger which is the more clear because this maxime being very ancient was produced before their was any Heir Male or of Tailzie and because the Reason of the Law is founded upon the Natural Obligation Parents and Predecessors have of providing their Successors and so can do them no prejudice especially when they are weak and on Death-bed The Pursuer answered as before that the maxime is general and there is no distinction introduced by Law or Custome of Heirs Male and albeit the Law had introduced such Heirs since this Common Law yet in so far as it makes them Heirs It gives them the Priviledge of Heirs to which the Reason of the Law doth well Quadrat which is not that Natural Obligation but this presumption of Law that Persons on Death-bed are facile and weaker in their Capacities then at other times and therefore the Law disables them at that time to alter the Setlment of their Estates as they were in their Health and so allows of no deed in prejudice of any Heir of whatsoever kind although in favours of another The Lords repelled this Defense 4ly It was alleadged that the Defunct having himself constitute this interest of the Heir Male had reserved this power to himself to alter it during his life can signifie nothing unless it Impower him to do it on Death-bed because without any such Reversion he might have altered the Tailzie during his Leigpoustie The Pursuer answered Pactum privatorum non derogat jure communi Therefore this being a special part of our common Law anterior to either Act of Parliament or Practique no privat Provision or Reversion can capacitat any Person to do that which the Law declares void especially being upon a Reason of weakness and infirmity which is presumed in Persons on Death-bed presumptione juris de jure admitting no contray probation for it will not be admitted to prove that the Disponer was in perfect soundnesse of mind and therefore if any Person should reserve a Power to Dispone though he were not compos mentis the Reservation would signifie nothing so here neither is the ordinary word adjected etiam in articulo mortis or on Death-bed and so cannot be extended to that case and can reach only to what is done lawfully legittimo tempore modo and there is far lesse inconvenience that a Cause should be superfluous which is very ordinary then that it should extend to take away common Law neither is the Provision adjected as an expresse condition upon which the Tailzie was made and no otherwise The Lords repelled also this defense in respect of the Reply and so having advised all the Defenses and Disputes in the afternoon albeit the Parties had aggreed before hand and the Heir of Lynes Portion doubled yet the Lords were generally clear in the Decisions abovewritten as relevant in themselves James Cuthbert of Dragakers contra Robert Monro of Foules February 26. 1663. THe said Iames pursues the said Robert Monro as Heir to his Predecessor the Laird of Foules for payment of a Debt due by him and insists against him as behaving himself as Heir by intromission with the Moveable Heirship The Defender alleadged absolvitor because it was not condescended that the Defunct was a Person who could have an Heir as to Heirship Moveable as being Prelat Baron or Burgess and if the Lands of Foules be condescended on It is offered to be proven that he was denuded by Appryzing before his Death to which Appryzing he had Right before he was Apparant Heir being Tutor to another who was Apparant Heir for the time and therefore the Defender has neither behaved himself as Heir by Intrommission with the Moveable Heirship or the Rents of the Defuncts Lands 3dly The Defender died Rebel and his Escheat Gifted and Declared and so nihil habuit in se bonis and could have no Moveable Heirship It is answered for the Pursuer to the first non relevat that the Lands were Appryzed from the Defunct unless the Legal had been expyred yet semel Baro semper Baro. 3ly The Pursuer having taken Right to the Appryzing while he was Tutor ipso facto it accresced to the Pupil and thereby was extinct and cannot defend his Intromissions 4ly It was for a smal Sum and satisfied by Intromission of a year or two so that the continuance of the Apparant Heir in the Possession after he was satisfyed is gestio 5ly The Gift and Declarator if it was done during the Rebels Life it was simulat â—etenta possessione and so null The Lords found the Appryzing not to purge the Intromission unless the Legal had been expired in Moveable and his Apparant Heir might behave himself as Heir by Intromission with the Rents of the Apprysed Lands but if the Legal was expired they found it sufficient and that semel Baro semper Baro is only to be
to be Creditor in the same Clause The Lords found the conception of the Clause that the Brother by falling now Heir was excluded seing it was clear by the meaning of the Defunct that his Heir should have his Lands and his Bairns of his second Marriage should have though but one 4000 merks but here the Heir of the first Marriage was never served Heir They also found that the Portions of the Children being to an uncertain day and not conceived to their Heirs or Assigneys that they dying before that day had no right to the Stock but only the Annualrent medio tempore so that the Stock accresced to the surviving Children as if the Defuncts had never existed and that their Assigneys or Creditors could not have affected the same and so found the Brother had no right as nearest of Kin to the two deceasing Children not attaining the Age mentioned in the Contract William Stewart contra Stewarts Ianuary 18. 1665. WIlliam Stewart pursues a Poynding of the Ground of the Lands of Errol upon an Infeftment of Annualrent granted to his Grand-Father by the Earl of Errol by his Bond and Infeftment following thereupon in which Bond there were Cautioners the Annualrent was for a Sum of 7000 merk and a Sum of 8000 merk Compearance is made for the Pursuers Brothers and Sisters who alleadged that as to the Sum of 7000 merks it became moveable and belongs to them as nearest of Kine In so far as their Father made Requisition for the same It was answered the Instrument of Requisition is null and being disconform to the Clause of Requisition in respect that the Original Bond was to the Husband and Wife the longest liver of them two in Conjunctfee and their Heirs c. And the Requisition bears expresly That if the Husband or his Heirs required with consent of the Wife then the Debitor shall pay ita est the Instrumenet bears no consent It was answered that albeit some Points of the Requisition were omitted yet seing the mind of the Defunct appears to take himself to his Personal Right and consequenly to prefer his Executor to his Heir it is sufficient The Pursuer answered non relevat because every Intimation of the Defuncts Intention is not enough but it must be haili modo and the ground whereupon the Sums become moveable is because the Requisition looses and takes away the Infeftment and therefore if the Requisition be null the Infeftment is valid and he Bairns can never have access The Lords found the Requisition null and preferred the Heir Stewart contra Stewart Ianuary 19. 1665. IN the foresaid Cause it was further alleadged for the 8000 merk that it was also moveable because as to it there was no Liferenter and the Fear himself did require It was answered for the Children that the Requisition is null because it mentions not the production of a Procuratory nor the production of the Right it self 2ly The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul whereas he was Cautioner for the Earl of Errol granter of the first Bond. It was replyed oppones the Requisition bearing That the Procurators power was sufficiently known to the Notar 2ly non Relevat unless the Person required had called for the Procuratory or Right and had been refused 3ly The Procuratory is now produced with the Right and the Defunct acknowledged the Procuratory and Right because he raised horning thereupon The Lords sustained the Requisition and found the Sum moveable and preferred the Bairns thereto Shaw contra Lewens Eodem die WIlliam Shaw being a Factor at London and dieing there and having Means both in England and Scotland There falls a Competition betwixt his Executors nuncupative in England and his nearest of Kine Executors in Scotland Anna Lewens Executrix confirmed in England produces a Sentence of the Court of Probat of wills in England bearing That upon the Examination of Witnesses that Court found that William Shaw did nominat Anna Lewens his Executrix and universal Legatrix And that being asked by her what he would leave to his friends in Scotland He declared he would leave her all and them nothing because they had dealt unnaturally with him It was alleadged for the Defuncts Cusigns Executors Confirmed in Scotland that they ought to be preferred because as to the Defuncts Means and Moveables in Scotland the same must be regulat according to the Law in Scotland where a nuncupative Testament hath no use at all and albeit a Legacy may be left by word yet it cannot exceed a 100 lib. Scots It was answered that as to the Succession the Law of Scotland must regulat so that what is Heretable cannot be left by Testament though made out of Scotland As was found in the Case of the Successors of Col Henderson dying in Holland and in the Case of contra Meldrum yet as to the Solemnity of Acts to the Law and Custom of the Place where such Acts are done takes place as where an Act is done in Scotland albeit it be only probable by Writ or Oath of Parties yet being done in England it is probable by Witnesses though it were of the greatest moment and though the Law of Scotland in Writs of Importance requires the Subscription of the Partie before Witnesses or of two Nottars and four Witnesses yet Writs made in France and Holland by the Instrument of one Nottar are valid so here there being no difference from the Law of Scotland which always preferres Executors nominat before nearest of Kin and the difference only as to the Solemnities and manner of Probation that there it may be proven by Witnesses there was a Nomination and here only by Writ The Lords having considered the Reasons and former Decisions preferred the Executors confirmed in Scotland for they found that the Question was not here of the manner of Probation of a Nomination In which case they would have followed the Law of the Place but it was upon the Constitution of the essentialls of a Right viz. A nomination which albeit it were certainly known to have been by word yea if it were offered to be proven by the nearest of Kin that they were Witnesses thereto yet the Solemnitie of writ not being interposed the Nomination is in it self defective and null in substantialibus Lord Lour contra Ianuary 20. 1665. IN a Process for making arrested Sums furth-coming two Arresters viz. my Lord Lour and another Competing It was alleadged for Lour that the first Arrestment is null because the Partie was out off the Countrey when it was only made at his dwelling house which is not Legal seing all Summonds Intimations Premonitions Requisitions and all Denunciations against Parties out of the Countrey must be by Letters of Supplement from the Lords Execute at the Mercat Cross of Edinburgh and Peir and Shore of Leith So must Arrestments against these who are out of the Countrey be there Which the Lords found relevant and preferred the second Arrestment Personal
Terms run in the third unpayed the Tack should expire and be null ipso facto without Declarator It was answered that notwithstanding clauses so conceived The Lords hath been accustomed to put them to Declarator in which case they have the priviledge to purge the Failzie at the Bar and if need beis the Defender will now purge The Lords found the reply relevant in respect of the conception of the Clause and would not suffer the Defender to purge for albeit in Declarators against Feues ob non solutum canonem the Lords will suffer the Defenders to purge at the Bar when the pursuite is upon the Act of Parliament yet they will hardly suffer them to purgewhere that Clause Irritant is exprest in the Infeftment so Proprietars may pursue their Tennents for failzing to pay the Duties of their Tack and to find Caution in time coming else to remove when there is no such Clauses Irritant and then they may purge but when the Clause Irritant is exprest there is far less reason they should have liberty to purge in Tacks then in Feus where the penalty is much greater Pringle of Torsonce contra Ker of Sunderland-hall February 17. 1665. PRringle having appryzed the Right of a Wodset from the Heirs of Sir George Ramsay does thereupon require and charge for the Money It was alleadged that he cannot have the Wodset Sum unless he not only Infest himself in the Wodset and renounce the same but put the Defender in peaceable possession as he did possesse the Wodsetter from whom the Pursuer appryzed and who can be in no better Case then the Wodsetter himself The purâ—uer answered that he was willing to renounce all Right and Possession but could not put the Defender in Possession because a thrid Partie had intruded himself without the Pursuer or his Authors Fault and the Wodset being but a Pledge the Hipothecar is not lyable contra vim majorâ—m but only pro culpa lata levi Therefore if a Pledge be taken away by force it hinders not the Creditor to demand his Sum. The like must be in intrusion which is an Act of force and the Pursuer who hath only his Annualrent is not oblidged to consume the same upon recovery but the Defender may do the same The Defender answered that whatever might be alleadged in the Case of Intrusion if in continent the Wodsetter had intimate the same and required his Money yet this intruder has continued a long time The Lords found the defense and duply relevant to stop the payment of the money till the possession were delivered seing the intrussion was ex inter vallo James Butter contra Gray of Balbrino Eodem die JAmes Butter having pursued Gray for payment of a Sum of Money he alleadged prescription because fourty years had run from the date of the Bond being the last of December 1624. before any Judicial Act or other interruption done thereon The Pursuer replyed that he had cited the Defender upon the first Summons upon the 24 of December 1664. which was six days within the fourty years from the date 2ly It was much more within the 40 years from the Term of payment of the Bond from which only and not from the date prescription runs quia contra non valentem agere non currit prescriptio The Defender answered that the citation on the first Summons was not sufficient unless there had been an Act of Continuation or some Judicial Act within the 40 year Because the Act of Parliament bears expresly If the Creditor follow not and take document within 40 years the Bond shall expire The Lords found the reply relevant and that the Citation on the first Summons was sufficient being within 40 years of the term of payment Sir John Baird contra Magistrats of Elgine Eodem die SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel escaping out of their Prison who alleadged absolvitor because the Rebel had the benefit of the Act Debitor and Creditor and produced the Clerk of the Bills Certificat thereupon when he was offered to Prison and being Imprisoned joyntly for an other Debt The Magistrats protested that they excepted him not prisoner for this Debt It was answered that the benefit of the Act contains an express nullitie if the Annualrents be not payed conform thereto The Defenders answered that they could not be Judge to the discharge and that upon the like case of a Protection of the Kings the Magistrats of Strivling were liberat The Lords repelled the Defense unless the Clerks attest the discharge had been first produced or shown to the Magistrats before the Prisoner was let go In which case they might either have refused him or let him goe free Marquess of Huntly contra Gordoun of Lesmore February 22. 1665. THe Marquess of Huntly as Donatar to the Forefaulture of the Marquess of Argyle as to the Estate of Huntly obtained Decreet of Parliament against Gordoun of Lesmore for payment of the Mails and Duties of certain Lands and for removing therefrom He Suspends on these Reasons First That the Decreet was null not preceeding upon lawful Citation but far fewer dayes then is appointed by Law and that he was absent and now alleadges that his Right to the Lands in question was by excambion with the Marquess of Argyle for Lands holden of the Marquess of Huntly which he had possessed thirtie or fourtie years before and thereefore if the Pursuer were dispossessed of the Lands in question he behoved to possesse him in other Lands 2ly The Decreet is null as not proceeding upon tryal of an Inquest cognoscing the Marquess of Argyle Heretable possessor five years before conform to the Act of Parliament nor could that be cogâ—oâ—â—ed because the Defender himself was Heretable possessor these years 3ly The Defenders Right from the Marquess of Argyle albeit it was post comissum crimen yet the cryme was latent proceeding upon missive Letters of his that was found out of the English hands which the Defender could not know The Pursuer answered to the whole that he opponed the Decreet of Parliament which ought not to have been Suspended by the Lords of Session who are not Judges to Decreets of Parliament who may dispence with the Dyets and Solemnities of Law and the Pursuer insists not upon the benefit of the five years possession but upon this ground that the Defenders Rights from the House of Huntlie or from Argyle were holden base of Argyle and not confirmed by the King and therefore by the Forefaulture of Argyle the Superiour who by his Right came in Huntlies place these unconfirmed base Rights fall Which the Lords found relevant and in the same Process Mails and Duties being but generally decerned without expressing the quantities The Lords ordained the Pursuer to condescend upon the quantities and gave him a term to prove Viscount of Kingstoun contra Collonel Fullertoun Eodem die THe Viscount of Kingstoun pursues Collonel Fullertoun upon the
obtained that that Decreet should be transferred against him and it should be declared that the Adjudication should proceed against the next Appearand Heir It was alleadged for the Defender that the former Appearand Heir having dyed before Adjudication and so the Diligence being incompleat there could be no Process thereon till this Defender were again charged to enter Heir to the first Defunct especially seing he had Annum deliberandi competent to him of the Law which would be taken from him if this order were sustained and as an Appearand Heir charged though the dayes of the Charge were run before his death the same would be void if no Decreet had followed thereupon And the obtainer behoved to obtain his Diligence thereupon renewed so it ought to be in this Case It was answered the Case was not alike for here there is a Decreet obtained upon the Heirs Renounciation and there is no reason to put the Creditor to do diligence again especially now since the late Act of Parliament whereby if he get not Adjudication within a year he will be excluded and there are other Appryzings already deduced The Lords Sustained the Process hoc ordine with this provision that if this appear and Heir entred and Infeft himself within year and day the Adjudication should be redeemable to him within the Legal Reversion of 10. years by which neither the Creditor was prejudged of his diligence nor the Heir of his Priviledge Lord Rentoun Justice Clerk contra Fewars of Coldinghame Eodem die MY Lord Rentoun as being Infeft in the Office of Forrestrie by the Abbot of Coldinghame containing many special servitudes upon the whole Inhabitants of the Abbacie as such a dutie out of Waith Goods and out of all Timber cutted in the Woods of the Abbacie with so many Woods Hâ—ns and a Threave of Oats out of every husband Land yearly pursues Declarator of his Right and payment of the bygones since the year 1621. And in time coming both Parties being formerly ordained before answer to produce such Writs and Rights as they would make use of and these being now produced The Pursuer insisted primâ— Loco for Declaring his Right as to the Threave of Oats It was alleadged for the Defenders absolvitor because they had produced their Fews granted by the Abbots of Coldinghame prior to the Pursuers Infeftment free of any such burden It was answered The Defense ought to be Repelled because the Pursuer has not only produced his own Infeftment but his Predecessors and Authors Infeftments and his progresse to them viz. The Infeftment granted to David Evin of the Forrestrie containing all the Duties a foresaid which is before any of the Defenders Infeftments produced It was duplyed for the Defender that the Infeftment granted to the said David Evin is no original Infeftment but bears to be granted on his Mothers Resignation and has no special reddendo but only relative to the former Infeftments And therefore unless the former Infeftments were produced or it were instructed that the Resigner had Right the Infeftment upon Resignation can operat nothing especially never being cled with Possession as to the Threaves of Oats in questionâ— for there is great odds betwixt Infeftments granted by Kirkmen who are but administrators of the benefices and others who have plenum dominium so that Infeftments upon Resignation of Kirkmen are to be understood to confer no more Right than the Resigner had and not to constitute any original Right where there was none before in the same way as Infeftments granted by the King upon Resignation are but periculo petentis and give no Right further then the Resigner had even against the King It was answered for the Pursuer that his Reply stands relevant and he produces sufficiently to instruct his predecessors Right for there is no Law nor Reason to compell Parties to produce the old Original Feus granted by Kirkmen but Infeftments upon Resignation are sufficient neither is the Case alike as to the King and Kirkmen because things passe not by the King ex certa scientia which no other can pretend but in this Case declaring a Right granted by an Abbot with consent of the Convent it must be considered what made a Right the time that it was granted when there was no more required then his Concession with consent foresaid which is sufficient against him and his successors neither can they pretend that such grants are salvo jure suo And if in matters so Ancient Original Infeftments from Kirkmen behoved to be produced that neither Precepts of clare constat nor Infeftments upon Resignation were sufficient Few rights of Kirk-lands in Scotland would be found valid The Lords Repelled the Defense in respect of the Reply and found this Infeftment upon Resignation sufficient Iohn and Ioseph Heriots contra James Fleming Messenger and Cautioners January 19. 1666. JOhn and Joseph Heriots having obtained Decreet before the Lyon against James Fleming Messenger and his Cautioners depryving the Messenger upon Malversation in so far as being imployed to execute a Caption he had taken the Debitor and had Denounced and Appryzed his Lands and suffered the Debitor to escape and would not subscribe the Decreet of Appryzing whereupon he was depryved and decerned to pay 500. merks conform to the Act of Parliament 1587. cap. 46. And both he and his Cautioners were decerned to pay the Sum as Damnage and Interest to the Pursuer They Suspend and alleadge that the Decreet is null in so far as it was pronounced by the Lord Lyon without the concourse of the Heraulds which is required by the said Act. 2dly Albeit the Lyon be impowred to deprive Messengers by the said Act yet their Cautioners are not under his jurisdiction nor the damnage and interest of Parties by Messengers malversation which is only competent to the Judge ordinary It was answered to the first oppons the Decreet wherein the Cautioners compeared and so acknowledged the Lyons Jurisdiction as he then sat likeas the Decreet it self bears to be by the Lyon with the Heraulds To the Second The Cautioners having enacted themselves in the Lyons Books they have made themselves lyable and for the damnages they are consequent to every Jurisdiction and the Lyons have been constantly in use to determine the same as to this Point The Lords were of different judgements for they thought that by the Act of Parliament the Lyon had no such power but as to long Custom some thought it was sufficient to give that power and there was no inconveniencie seing his Decreets might be Suspended Others thought that Custome being clandestine and without the contradiction of Parties who might voluntarly submit themselves to any Authority could not be sufficient The Lords Ordained before answer the Lyons Books to be produced to see if there were such a Custome before it were decided and how far that Custome would work Christian Braidie contra Laird of Fairney January 20. 1666. CHristian Braidie having pursued a Reduction of a
in these Termes that he should present him to the Diets of Process and should make payment of what should be Decerned against him if he did not produce him within Termes of Law pendente lite Balnigoun raises Advocation and at the same Diet that the Advocation was produced Judicially before the Bailzies Heugh Mcculloch also produced Balnigoun and Protested to be free of his Bond as Cautioner the Bailzies did not Incarcerat Balnigoun but refused to Liberat Heugh Mccullochâ— till they saw the Event of the Advocation The Cause bâ—ing Advocat and Decerned against Balnigoun who succumbed in an alleadgence of payment The Pursuer craved Sentence against him and Heugh Mcculloch his Cautioner It was answered for Heugh Mcculloch that he was free because he had fulfilled his Bond in presenting Ballangoun and Protestâ—ng to be free albeit the Bailzies did not free him that was their fault It was answered that the Advocation being raised hindred the Bailzies to Incarcerat because they might not proceed after the Advocation and therefore the Cautionrie behoved to stand otherwise all Acts of Caution to answer as Law will might be so elided The Lords found the Cautioner free and found that the Bailzies notwithstanding of the Advocation might Incarcerat the principal Party unless he had found new Caution for seing if he had found no Caution a principio but had been Incarcerat till the Cause had been Discust the Advocation would not have liberat him and whensoever the Cautioner produced him Iudicially and protested to be free he was in the same case as if he had been Incarcerat and therefore the Bailzies might have detained him in Prison notwithstanding of the Advocation which did sist the Cause Mcbrair contra Sir Robert Crichtoun alias Murray Eodem die DAvid Mcbrair pursues a Removing against Sir Robert Crichtoun who alleadged absolvitor because the warning was null in so far as he being notourly out of the Countrey The Warning proceeded on 40 days not only at the Ground and Paroch-kirk but also at his Dwelling-house whereas it ought to have been on Letters of Supplement on 60 days at the Mercat Cross of Edinburgh Peer and Shore of Leith It was answered that the Act of Parliament anent Warning was only on 40 days without distinction being out of the Countrey or in the Countreyâ— and it was sufficient that the Summons of Removing upon the Warning was upon 60 days because the Warning at the House was rather an Intimation then a Citation which was sufficient seing the Defender had been butshort while out of the Conntrey not animo remanendi and so had still a Domicile where he was Cited The Lords sustained the Warning but in Respect the Defender had probabilem causam dubitandi They superceeded the Execution to the next Whitsonday without any violent profits Lord Borthwick contra his Wodsetters Feb. 21. 1666. THe Lord Borthwick pursues an Accompt and Reckoning against several Wodsetters who had Wodsets from him in the year 1660. to Count and Reckon for the Superplus of the Wodset more then their annualrent since the Act of Parliament between Debitor and Creditor upon that Clause thereof appointing Wodseters who have proper Wodsets before the year 1650. or since before the Act to Compt and be lyable for the superplus more than their due annualrent It was alleadged for the Defenders That the Pursuers had in the Wodsets expresly Renunced the Usurpers Act in favours of Debitors and all such Acts made or to be made and by the said Act between Debitor and Creditor there is an Exceptionâ— where Persons have renunced such Acts. It was answered that that Exception is insert in the Act before this Clause in Relation to Wodsets and does not relate to it but unto the former Provisions of Suspending the Sums which was also the Tenor of the Usurpers Act and therefore the Exception of the Renuncing such Acts cannot extend to the Case of accounting for Wodsets which could not be thought upon the time of the Wodset and of the Renunciation this Clause being according to common Law to hinder Usury which might have been indirectly taken by proper Wodsets though these by the Custom use not to be quarâ—elled The Lords Repelled the Defense in respect of the Reply and found the Exception not to extend to the Case of Wodsets It was further alleadged for the Defenders that they were not lyable to to compt for the Superplus for all years bygone since the Act of Parliament nor at all except in the Case that they had been required to quite the Possession of the Wodset and Security had been offered them for their Money and they had chosen rather to retain the Wodset and to compt for the Superplus for as to all years preceeding they were bona fide Possessors and had ground to presume that the Pursuer did acquiesce in the Wodset as only proportionable to the annualrent and it were unjust and of evil consequence that if the granter of the Wodset should forbear to offer Security for 20 years upon his offer then the Wodsetter should be oblieged to Compt from the Act of Parliament It was answered that there was no inconveniency seing the Wodsetter might if he pleased quite the Possession and then was not comptable at all But if he would retain the Possession he could not refuse to compt for all bygones since the Act of Parliament The Lords having considered the Clause of the Act of Parliament found the Defenders only lyable from the time of the offer of Caution and Requiring the Possession and not from the date of the Act of Parliament seing the Clause bears they shall have by the Wodset which looks to be future only and seing the Wodsetters might have Builded or Planted for their own accommodation and therefore might rather reain the Possession then other Security Ogilby contra Eodem die THe like case was decided betwixt Ogilby and where this was further Represented that the Summonds could not be Sustained unless the offer had been made by way of Instrument before the Summons yet the Lords Sustained the offer instantly made to have effect ab hoc tempore but not from the Citation It was also further alleadged for the Defender that there was now no Caution offered It was answered for the Pursuer that there needed no Caution if the Wodsetter choised to retain the Possession because the Wodset it self was sufficient Security It was answered that they were not obliged to declare their option till Caution were first offered by the granter of the VVodset and the Statute behoved to be strictly Observed It was answered that there was here no detriment to the VVodsetter and the granter of the VVodset might be so poor as not to be able to find Caution The Lords found in respect of the Act of Parliament that Caution behoved to be offered and would not exceed the Terms thereof contra The Sheriff of Inverness Eodem die 〈…〉 being pursued for Theft-boot before the Sheriff of Inverness upon the
over-rule his Deputs for whom he was answerable and therefore was oblieged to Reside that albeit he did not constantly sit yet he might advise with his Deputs in important Cases and the Lieges might have access to him to complain in case of the Deputs Malversation and as to the power of Deputation it self and the Injunctions The Lords found that the Defender was in bona fide to enjoy these Priviledges till it was declared notwithstanding he was required to the contrair but as to the future they found that he ought to reside and make use of no Deputs without the consent of the Archbishop but whether that should be only pro re nata or by a warrand for such Persons not only upon necessar occasions mentioned in the injunctions but also in others that the Deputs might ordinarily sit and advise with the Commissars in Cases of importance The Lords were of different judgements and recommended to the Bishop in common to consider what was fit in that Case but declared only according to the Injunctions without interpretating how far the Deputation should reach Children of the Earl of Buchan contra Lady of Buchan February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment It was alleadged absolvitor because their was neither Law Statute nor Custome of this Kingdom oblidging a Mother to Aliment her Children 2ly Albeit there were she offers her to admit them in her Family and to entertain them according to her means but can never be oblidged to pay a modification in Money out of the Family for in all Cases of Aliment of Wives or Children against Parents the offer to accept and Aliment them in the Family according to the Parents Means doth alwayes exclude Modification as was lately found in the Case of Sir Andrew Dick and his Son It was answered that the Law of Nature is a part of the Law of this and all other Civil Kingdoms and according thereto the Lords do alwayes decide in Cases now occurring where there was neither Statute nor Custome and if Aliment be due the manner and measure is in arbitrio judicis who may justly ordain their Children to be bred from their Mothers seing she hath miscarried and Married a deposed Minister It was answered that the Law of Nature without our Custome is no sufficient Law to us and does not induce obligationem civilem but only pietatem affectum upon which ground it is that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters which insinuats that there was no such Law before and if the Law of Nature be the adequat Rule we are oblidged to entertain the Poor and all in distress and therefore they might pursue us thereupon 2dly There is no Reason to put it in arbitrio judicis whether a Child should be Educat with the Parent who must Aliment him even upon pretence of the Parents miscarriage for that being the indispensable Right of Parents to educat their Children as they see cause especially who demand Aliment of them it ought not to be in the arbitrament of any Judge unless it were a Parliament and this arbitriment would lay the Foundations to encourage Children to desert their Parents and to claime Aliment out of their Family and to pretend the Parents miscarriages as unfit Persons to be bred with and not breeding them in a fit way which accusations were prohibit by the Civil Law and never admitted by our Custome for albeit the Lords may appoint the way of Education of Pupils their Parents being dead yet Tutors have no such interest as Parents The Lords found the Mother oblidged to Aliment the Children jure naturae which was sufficient to infer this Civil Obligation and Action but found that the offer of Alimenting them in her Family was sufficient according to her means and they could demand no Aliment nor Modification extra familiam For they found that the Lords had thus sustained Aliment to Children against theîr Fathers not upon the Act of Parliament which is competent against all Liferenters and Donatars without consideration of their being Parents but super jure naturae which they found would not extend to the obligation of Charity and which had no definite rule but at the discretion of the giver and was not allowed as a civil obligation by any Nation Grant contra Grant February 24. 1666. GEorge Crant having Appryzed a Wodset Right from Grant of Mornithe and thereupon obtained a Decreet of Removing and Mails and Duties against Grant of Kirkdails Reduction was raised thereof and of the ground of the same viz of the Wodset Right on this Reason that the one half of the Sum was payed and the Wodset renunced pro tanto long before the Appryzing It was Replyed that there was an Inhibition for the Sum whereupon the Appryzing proceeded after which Inhibition if any payment was made or Renunciation granted the samine was reduceable ex capite Inhibitionis It was answered that all that the Inhibition and Reduction thereupon could work was in so far as might extend to the satisfaction of the Sum and now they were willing to satisfie the whole Sum cum omni causa It was answered that no satisfaction could now be accepted because Appryzing having followed upon the samine and being expired and no satisfaction being offered within the Legal or the time of the Reduction it cannot now be admitted It was answered that the Inhibition could not only work that nothing done after the same should be prejudicial to the Sum but altered not the Case as to the Appryzing led long thereafter unless the Inhibition had been raised upon the Appryzing The Lords found that Inhibition could not be taken away or satisfied by payment of the Sums after the expiring of the Apprizing wherein the President remembred of a former Case that even in the obtaining of the Reduction ex capite Inhibitionis the offer to satisfie the Sum whereon it proceeded was repelled In respect an Appryzing thereupon was expired Sir Robert Sinclar contra Laird of Waderburn Eodem die JOhn Stewart Son to the Earl of Bothwell being Abbot and Commendator of Coldinghame the Earl being Forefaulted in Parliament his Son was dishabilitat to brook any Lands or Goods in Scotland whereby Iohn fell from the Right of Provision of the Abbacie Thereafter the King annexed the Abbacie of Coldinghame which was excepted from the general Annexation 1587. to the Crown excepting the Teinds and gave Right of Reversion both of Lands and Teinds to the Earl of Hoom who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn Thereafter Iohn Stewart was by Act of Parliament restored and the former Act of Dishabilitation rescinded whereupon Iohn Stewart demitted his temporal Provision in the King's hands and got it Erected in an Heretable Right he thereupon Infeft Dowglas of Ivleck for relief of Sums Sir Robert Sinclars Lady as Heir to him
Heir to his Father by Intromission with the Mails and Duties of the Lands wherein his Father dyed Infeft as of Fee for payment of a Debt of his Fathers who alleadged absolvitor because any Intromission he had was by a Warrand and tollerance of Sir George Kinnaird who stood Infeft in the Lands upon a Gift of Recognition It was answered non relevat unless the Gift had been Declared before the Defenders Intromission because the Gift would not have given Right to the Donatar himself to possess The Defender answered that the Gift was Declared before the Intention of the Pursuers cause which Declarator albeit after Intromission yet must be drawn back to the Gift to purge the vitiosity of the Defenders Intromission in the same way that the Confirmation of a Testament will purge anterior vitious intromission the Confirmation being before the intenting of the Cause The Lords found the Defense relevant to elid the passive Title seing any colourable Title is sufficient to excuse the vitiosity but did not find that the Declarator before intenting the Cause had the same Effect as a Confirmation because by constant Customs such confirmations purge the preceeding vitiosity which has never yet been found in this Case of an Heirs intromission with the Rents of Lands but the Lords found the Defender lyable for the single value of his Intromission Alexander Burnet contra Iohnstouns Eodem die JOhn Iohnstoun having disponed the Lands of Fraster-hill to Gordoun of Lesmore whose Right Alexander Burnet having appryzed and by the appryzing having Right to the Clause of Warrandice contained in the Disposition charges Iohnstoun the Disponer to warrand the Right against a posterior Right granted by him to William Iohnstoun who had obtained first Infeftment It was answered that the Warrandice could have no effect because there neither was nor could be a distress in so far as in William Iohnstouns Disposition Iohn Iohnstouns and his Wifes Liferent were reserved during whose life he could never distresse Burnet 2ly It was Burnets authors fault that for many years he did not take Infeftment having long Right before the second Disposition It was answered that Iohnstoun himself could never object this delay to excuse his fraudulent Deed of granting double Dispositions whereby Parties become infamous by the Act of Parliament 1540. cap. 105. and unto the other point albeit there was no present distress yet there was unquestionable ground of a future distress against which the Defender could answer nothing that could elid it and who being but a naked Liferenter if no execution should pass upon the Clause of Warrandice during his Lifetime he would be fully frustrat The Lords decerned Johnstoun the Disponer to purge the posterior Disposition granted by him and found neither of the alleadgeances in the contrair relevant Brown and Duff contra Bizet July 18. 1666. BRown and Duff having obtained Decreet against Bizet for a Sum due to Umquhil Andrew Duff Merchant in Polland Bizet raises Suspension and Reduction upon this Reason that this Sum having been in bonis defuncti the Charger could have no Right thereto till it were established in their Persons by a Confirmation in Scotland by the Commissaries of Edinburgh ut in communi patria It was answered moveables sequuntur personam and therefore wheresoever the moveables be they are regulat according to the Law of the place where the Defunct resides and it is instructed by the Testimony of the Consul and Counsel civitatis Regiae pusensis that by the Common Law and Law of that place moveables belonged to the Wife and Bairns and the Pursuers were so cognosced by them declaring the said Clares Brown Wife and the said Duff the only Daughter of Andrew Duff and therefore they have sufficient Right without Confirmation in Scotland which appears by the Act of Parliament James 1. cap. 89. Par. 1426. And it hath been still the Custome so to do and that it was so decyded the 16. of Feb. 1627. Lauson contra Bastil Kello It was answered that it was otherwayes decided in the Case of Rob contra French 25. Feb. 1637. And there was no reason that these that lived out of the Country animo remanendi should be in better condition then these that resided in the same and behoved to Confirm and to pay the Quot The Lords found that the Testament behoved to be Confirmed by the Commissars of Edinburgh for having considered the old Act of Parliament they found that the poynt there ordered was to what Judicatures the Merchants going abroad to Trade should be lyable and that such as went abroad not animo remanendi should be subject to the jurisdiction of that place where their Testament would be confirmed viz. where they had their Domicills but these that went out of the Country to remain are excepted but nothing exprest where their Testament should be Confirmed and for the Decision the Point in question was not whether a Confirmation in England was valid but whether a Confirmation without an Inventar was valid and therefore seing nothing was objected against the Confirmation it self The Lords did justly find that the wanting of an Inventar in an English Confirmation where that was the custome did not prejudge it neither is the Case determined by the Decision betwixt Rob and French in respect that the Executor having Confirmed in England and rather being Confirmed by the Legatars would not own the Confirmation but renunced the same and therefore the Lords found no Consuetude or Decision in the Case but determined the same ex bono aequo Hellen Millar contra Watson Iuly 21. 1666. WAtson having obtained a Decreet before the Lords against Hellen Millar for the Rent of some Tenements in Glasgow she Suspends and raises Reduction on these Reasons First That the Decreet was null as being ultra petita in so far as the half of the Duties was only lybelled and the whole was decerned 2dly That Watson's Right was as Heir to Watson who was first Wife to Brown who stante matrimonio acquired this Right to him and her and the one half to her Heirs and the other to his which was a Donation betwixt Man and Wife revocable and revocked by the Infeftment granted to Hellen Millar in Liferent his second Wife It was answered that the Decreet being in foro contradictorio was irreduceable 2dly That the Right was not granted by the Husband to the Wife but acquired from a third Partie The Lords reduced the Decreet finding that it was visibly Extracted by error of the Clerks being ultra petita and therefore sustained the second Reason albeit it was omitted that it was a Donation betwixt Man and Wife being acquired to the Man and Wife and so presumed to be by his means which is equivalent as if he had been Author unless that Watson could condescend that it was by the Wifes means Gavin Hamiltoun contra Duke Hamiltoun and Bishop of Edinburgh Eodem die GAvin Hamiltoun as Assigney by the Collector of vaccand Stipends
The Creditors alleadged that the assignation being in the hands and custody of Mr. Alexander the Granter it must be proven by Writ he being dead that it was delivered and not by Witnesses for there is nothing more frequent then Parties upon intentions to subscribe Bonds Assignations and other Rights and yet do not de facto deliver them or if they have been delivered to satisfie them and retire them and if Witnesses were admitted to prove the delivery or redelivery of such Writs the Lieges would be in extream unsecurity contrary to our Law that admits not Witnesses above an hundred Pounds and therefore Chirographum apud debitorem repeatum praesumitur solutum which presumption cannot be taken away by Witnesses The Pursuer answered that though this holds in Bonds where there is a Debitor and no other adminicle to instruct the Debt yet this is an Assignation and the Cause thereof otherwise instructed and most likely to be truely done and it is offered to be proven that this Assignation was delivered back to Mr. Alexander to be made use of as Agent for the Pursuer The Lords refused to sustain this Member of the Probation but because of the poverty of the poor Woman recommended the case to the Creditors to be favourable to her and did forbear to write the Interlocutor Hay of Knockondy contra Litlejohn Eodem die HAY of Knockondy pursues Litlejohn for the damnage sustained by him by the fall of Litlejohns House called the Tower of Babylon whereby the Pursuers House adjacent was broken down The Defender alleadged First The Libel was not relevant unless he had been required to find Caution de damno infecto as is required by the Civil Law whereby if that Caution were not required there is an express Text in the Title de damno infecto that there shall be no Action but the Party shall impute his loss to his own negligence Likeas we have two special Statutes concerning ruinous Houses which prescrive the method of preserving them and making up the damnage none of which being followed the Defender is not lyable 2ly Whatsoever might be alleadged against the Heretor of the said House the Defender is only an Appryzer of a Liferent-Right for a small Sum and the Liferenter was not obliged to repair a Tenement manifestly ruinous that could not be preserved but with great Expence and Rebuilding much less the Appryzer who hath but a small Sum on it The Pursuer answered to the first Defense that his Libel was most Relevant Damnage upon any fault being due and Reparable by the Law of Nature and as for the Civil Law it hath no Effect with us in this point our Custom neither giving nor requiring such Caution much less refusing Action if it be neglected and as to our own Statutes though they be very convenient wayes for securing of damnage yet they are not exclusive nor have they any Clause except in these Cases and in that method Damnage shall be irrecoverable To the 2d it was answered The Pursuer was not obliged to know or enquire whether the Defender was Heretor or not but he finding that he was a Neighbour behaving himself as Heretable Possessor by uplifting the Duties he did pursue him and if need beis offers him to prove that he did require him to keep him skaithless though he took no Instrument thereon The Defender answered that he was not obliged to take notice of such Requisitions not being Solemn by Instrument The Lords found the Defender lyable albeit there had been no Requisition verbal or otherwise it being proven that the Ruinousness of the Tenement that fell was notour and manifest to the Defender himself whereby he was obliged either to demolish the House if it was not Reparable or to have quite his Possession to evite the imminent damnage of Neighbours Lord Colvil contra Feuars of Culross Decemb. 15. 1666. THe Lord Colvil as Heretable Bailzie of Culross having Charged the Lord Kincairn and others for the Taxation of their Lands in Culross conform to the stent Roll They Suspended and alleadged that the stent Roll contained a fifth part more then the Taxation It was answered and offered to be proven that it was the Custom of that and other Benefices at their meeting of making the Stent-roll to add a fifth part for Expenses and Charges of ingathering the Taxation The Defenders answered that if any such Custom were it was against Law and against the Liberty of the Subject who could be lyable for no payment but by Law or of their own consent or if any such Custome were it hath been by the consent of the Vassals or at least they have not questioned the same nor is there any ground for such an addition for the Kings Officers being obliged by their Office to Collect His Majesties Taxations they can demand nothing of them who payed without Process and if they be put to Process the Lords will modifie such Expences as they see cause The Charger answered That such immemorial Customes have the strength of Law and that it was done with the consent of all the Vassals who conveened and that it was the Suspenders fault that they conveened not to make the stent Roll which should not put them in better case then they had conveened or if they had conveened and disassented there is no reason that the dissassent of a few should be preferred to the consent of the most part who as they may Vot in the stent Roll for the Taxation it self in which the plurality carries so must they for the necessary Expences and all that can be alleadged with reason is that the Lords may modifie the Expences of a fifth part if it be too high The Suspenders answered that Law authorized the Feuars as a Court and Judicature to meet and stent which implyes a power to the Plurality but there is no such warrand for Expences as to which the consent of a hundred cannot oblige the dissassent of one or of one absent and the absents have loss enough that they have not a Vot in their own Stent The Lords sustained the Reason of the Suspension notwithstanding of the answer and found that no Expences nor any thing more than the Taxation could be stented to have effect against these who consented not but they would modifie Expences in case of Suspension as the Cause required but modified none in this case because a fifth part was Charged for more then was due Lord Newbeath contra Dumbar of Burgie Decemb. 18. 1666. THE Lord Newbeath having right from Iames Mcken who had appryzed the Lands of Burgie pursues Reduction and Improbation against young Burgie and Iohn Watson and insists on this Reason that any Rights they have are null and fraudulent being Contracted after his Debt and the Right granted to young Burgie is null as being but a base Infeftment not cled with Possession before the Pursuers publick Infeftment The Defender alleadged that his Infeftment was cled with Possession in so
is here nothing but the very instancing of the Practiques without deducing the Case dispute and Reason of Decision neither can Skâ—ens conclusion take place in all the largeness he sets it down or else there shall need no more to infer a Marriage but that the Vassal was in lecto egritudinis albeit he had so continued of a Lent Disease above a year nothing should Capacitat him to Marry his Heir although he used all the Solemnities of Treaty Contract and Proclamation so that the Law de lecto â—gritudinis which is only introduced in favours of Heirs that their Predecessors shall not prejudge them shall now be made use of against the Heir that his Predecessor can do nothing to his benefite on Death-bed The Pursuer answered that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior that which he hath for his Fee being ordinarly the Service of the Vassal and the profit of the Fee when the Vassal is unserviceable through Minority reserving the Vassals own Aliment and the profit of the Vassals Tocher the Vassal ought not to defraud or prejudge him therein And albeit custom hath introduced an exception that the Tocher is not due to the Superior which was gotten during the Predecessors Life it being ordinarly consumed and applyed to the Predecessors use yet that by precipitation the appearand Heir should enjoy the same and not the Superior is against the Gratitude Amity and Obliegement of the Vassal neither is there any Parity in the Case of a Resignation to which the Superior consents or in the Case of an Appryzing wherein the Superior must Receive by the force of Law nor can the forbearance of sixty years infer a contrary Custome because this is a Case rarely contingent and oft times not known to the Kings Officers and though it were their negligence prejudges not the King by an express Act of Parliament neither is that a Custome which People use to do but Customes here are only such as are Judicial by the Kings Ministers of Justice whereanent Skeen expresly saith that this is praxis forensis and albeit the Decisions Adduced by him be not at large yet the circumstances of fraud here are so pregnant that they cannot be thought to have been more pregnant in any other Case where there was no Proclamation and where the Defunct was not only in lecto but was moribundus Physicians having so declared the common Reputation being that he would not Live and Dâ—ing de facto within a few dayes after and there being no singularity in the Match nor any pressing necessity of the Marriage for any other Effect The Lords found the Lybel and Reply relevant viz. That the Marriage was done when the Predecessors Father was moribundus and done wîthout Proclamation and that he Died within eight dayes after there being nothing alleadged to take off the Presumption of fraud upon these Circumstances Robert Miln contra Clarkson February 21. 1667. RObert Miln as Donatar to a Liferent Escheat having obtained a general Declarator insists now in a special Declarator for Mails and Duties It is alleadged for Clarkson that the Pursuer has no right to the Mails and Duties because he stands Infeft before the Rebellion It was answered any Infefetment Clarkson has is but a base Infeftment never clede with Possession till the Rebellion and year and day was run and so is null as to the Superiour or his Donatar It was answered that the base Infeftment is valide in it self and albeit by the Act of Parliament 1540. A Posterior publick Infeftment for Causes Onerous be preferable yet that cannot be extended to the Right of a Liferent Escheat or to a Donatar It was answered that by the course of Rebellion year and day the Superiors Infeftment Revives as to the Property during the Rebels Liferent and cannot but be in as good condition as any Posterior publick Infeftment and it was so decided March 19. 1633. Lady Rentoun contra Blackader The Lords found that the base Infeftment though Prior to the Denunciation not having attained Possession within year and day could not exclude the Liferent Escheat Helen Iohnstoun contra Robert Iohnstoun Eodem die IN the Cause betwixt Helen Iohnstoun and Robert Iohnstoun her Brother It was further alleadged for her that the Pursuit being a matter of breach of Trust and Fraud betwixt Parties so nigh as Brother and Sister the same ought to be Probable by Witnesses above exception and ought not to be referred to the Defenders Oath because it s offered to be proven that he did Depone before the Justices of Peace in Fife that he had never had the Bond in question and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond and that he received it blank from the Pursuers Husband and it s now offered to be proven by his own Brother and other Witnesses above exception that the Pursuer delivered the Bond to him blank after her Husbands death which being a matter of Fact and Probable by Witnesses necessarly infers that the Bond was not redelivered to her Umquhil Husband The Lords before answer ordained the Witnesses ex officio to be examined upon the Pursuers delivery of the Bond after her Husbands Death Earl of Errol contra Hay of Crimunmogat February 23. 1667. THe Earl of Errol Pursues a Declarator of Redemption against Hay of Crimunmogot It was alledged Absolvitor because the Defender stands Infeft upon a Charter granted by Barcklay with the consent of the Earl of Errol proomni suo jure long after the reversion granted be Barcklay whereupon this Redemption proceeds It was answered for the Pursuer 1. That the Earl only consents and the Charter bears that the Sums were payed to Barcklay whose Right produced is a Wodset granted by the Earl of Errol and Hay of Vrie bearing an Expresse Reversion to any lawful Eldest Son of Hay of Vrie which failzieing to the Earl of Errol Ita est that the time the Earl Subscrived this Charter Hay of Vrie was alive and had Sons at least in spe so that the Earl of Errol had not thereby the Right of the Reversion and therefore his consent without any Sums received or any absolute Warrandice cannot extend to any superveening Right which he then had not actually but in spe et in apparentia 2ly The Earls consent to Barcklayes Disposition who had only the Right of Wodset not bearing irredeemable or absque reversione cannot take away the expresse Reversion of Barcklayes Right for albeit an Heritable Right be presumed Irredeemable presumptio cedit veritati and it cannot take away a Reversion where it is The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right and Charter but that the Earls consent imported only his Favour and Goodwil to transmit the Right to the Defender in respect of the alledgeances aforesaid Laird of May contra John Rosse Eodem
so in Rights Moveable and this Bond is moveable being after the Act of Parliament 1641. which was so found in a Practique produced observed by Dury where the Wife by her Contract of Marriage Disponing her Goods and Debts to her Husband her self and their Heirs the same was found to divide betwixt the Husbands and the Wifes Heirs It was answered that here the Bond bore Annualrent and so was Heretable quod fiscum relictam and there being nothing to evidence that the sum was the Wifes own Means the same is presumed to be the Husbands and the taking of a Bond of this Tenor if it did import to give her the half is a Donation by a Husband to his Wife Revockable and now Revocked The Lords found that the Wifes Heirs had no interest in the Sum. Iohn Watson contra Feuers of Dunkennan Iune 21. 1667. JOhn Watson being Superiour of a number of Tenements and Roads about the Town of Kirkaldie pursues a Declarator against the Vailals to hear and see it found and declared that he might Rive and Plough the Muire of Dunkennan leaving as much of the Muire as would be sufficient and convenient for the use of the Vassalsâ— their Roads and Tenements for Fail and Devot Clay and Stone to the use foresaid It was alleadged for the Feuars that they had raised a Declarator of the Right of their Servitude through the bounds of the Muire which they repeated by way of Defense and alleadged that wherever a Servitude was Constitute it affected the praedium serviens wholly and every part thereof capable of the Servitude and could not be restricted without the consent of the Parties having Right of the Servitude as if any person had Right of Pasturage albeit limited to so many Goods or to the Goods of such Land which is the praedium dominans beyond which it could not be reached a Declarator of this Nature would never be sustained to astrict him to a portion of the Muire that would be sufficient for the Goods of that Town or of that number or if he were Infeft with the liberty of Feuel though there were two Mâ—â—sses that could not be exhausted within the bounds he could not be restricted to the one so here the Vassals being Infeft with the priviledge of Fail in this Muire they may take it out of any place of the Muire they please and can be restricted to no particular place It was answered that this Servitude being limited to the use of the Roads and Houses could not be thought to be so Constitute as to make useless the whole Property of the Muire the Pasturage whereof is worth nothing and the only use is Lyming and Labouring that it was hurtful to the common utility and improvement of Land so to extend such a Servitude and that if there were a Servitude of a way through the Constituents Ground it would not import a Liberty to make as many ways as could be made through the Ground or to change the way at the Dominants pleasure It was answered that the nature of the Servitude of a way or passage is ordinarly limited by Bounds and is always understood to be one way as is most convenient for the Dominant which having chosen he cannot thereafter change but it is not so in the Servitudes of Feuel Fail or Devot neither can the consideration of publick Utility or that the Defenders have no detriment warrand the Lords to take from him his Right or to limit it without his Consent which were only proper for a Parliament having not only the Judicative but also the Legislative Authority and the Rights and Securities of Parties should not be lyable to conjecture or arbitriment upon the supposition of conveniency but should be fully enjoyed according to Law The Lords found that this Servitude might be astricted to a part of the Muire which might be beyond all question sufficient for the use and with this quality in case it failzied they might return to that which was Laboured which behoved to be lâ—ft lye as far as would be sufficient Hay of Strowy contra Feuers Iune 22. 1667. HAy of Strowy being Infeft in the Miln of Strowy and having lately built a Walk-miln and made a new Dam-head therefore over that Burn which is the March betwixt him and the Feuers thereupon the Feuers demolished the Miln and the Dam. He now pursues the Feuers to hear and see it found and declared that he has Right to enjoy the Walk-miln and Dam and that they did wrong at their own haâ—d to demolish the same It was alleadged for the Feuers and the Laird or Ketr their Superiour Absolvitor because the building of this Miln being novum â—pus they might lawfully stop the same and might demolish the Dam the end thereof being fixed upon their Ground without their consent The Pursuer answered First Albeit the Defenders might have impeded while the work was doing yet theyâ— could not after the Walk-miln was a going Miln demolish the Miln or Dam thereof via facti albeit they might have used civil Interruption and stopped it via jurâ— because its a known and common custom that a going Miln cannot be stopt summarly being an Instrument of Service for common good 2ly The Defenders could have no detriment by putting over the Dam because it was a Precipice at their side to which the Dam was joâ—â—nâ—d so that they had no detriment either as to the Inundation of their Ground or Watering The Defenders answered that cui libet licet uti reâ—uâ ad libitum and they were not obliged to Dispute whether they had Damnage or not but might cast down the Dam built on their Ground unlesse their consent had been obtained and that there is no Law nor Decision for such a priviledge of Milns neither was it ever extended to Walk-milns The Lords found the Defenders might hinder the Building of a Damâ— upon their Ground without necessity to alleadge detriment but they found if the Walk-miln was a going Miln fourty eight hoursâ— that the Defenders could not brevi manu without the Authority of a Iudge demolish the Dam or Miln Mr. David Deuar contra Paterson Iune 26. 1667. MR. David Deuar pursues a Transferrence of a Compt and Reckoning which formerly was depending betwixt him and umquhil Henry Paterson and craves it may be Transferred against Henry the Heir and proceed where it left It was alleadged for the Defender absolvitor because the Citation was given before year and day after the Defuncts death contrary to the Defenders priviledge of his annus deliberaâ—di by which he hath inducias legales and cannot be forced to own or repudiat the Heretage The Pursuer answered First That annus deliberandi is only competent where the appearand Heir is Charged to enter Heir and so must either Enter or Renunceâ— and so has no place in Reductions or Actions Declaratory or real Actions which may proceed against the appearand Heir without a Charge The Defender answered that albeit
of the Rents of the Lands The Lords Sustained the Infeftment only for a third Mary Dowglasse Lady of Wamphray contra the Laird of Wamphray Ianuary 22. 1668. UMquhil Wamphray having Infeft his Lady in two thousand Merks of Liferent yearly by her Contract of Marriage out of certain Lands therein mentioned and being obliged to pay her as well Infeft as not Infeft and to warrand the Lands to be worth two thousand Merks of Free Rent She pursues this Wamphray for payment who alleadged Deductions of publick Burdens It was answered that an Annualrent was not lyable to publick Burdens for the Act of Parliament 1647. made thereanent was Rescinded and not Revived and this Provision is payable not only really but personally though there had been no Infeftment and that the obligement to make the Land worth two thousand Merks of free Rent could be to no other End but to make the Annualrent free especially the Contract being in anno 1647. after Maintainance was imposed which was the heaviest Burden It was answered that an obligement for payment of an Annualrent relating to no particular Land could not be burdened with the Land or if it did relate to a stock of Money the ordinar Annualrent of the Money behoved to be free but this Annualrent relates to no stock and its first Constitution is out of the Lands mentioned in the Contract so that albeit there had been no Infeftment it must bear proportionably with the Land and albeit the Act of Parliament be Rescinded yet the common ground of Law and Equity and the Custom thereupon remains neither doth the provision to make the Land worth so much of free Rent infer that therefore the Annualrent must be free which would have been so exprest at the Constitution of the Annualrent if it had been so meaned The Lords found this Annualrent lyable for the Assesment notwithstanding the Act of Parliament was Rescinded and all that was alleadged against the same was repelled Iohn Iustice contra Mary Stirling his Mother Ianuary 23. 1668. THere was a Bond granted by Stirling of Coldoch whereby he granted him to have received from Umquhil Iohn Iustice and Mary Stirling his Spouse the Sum of 1300. Merks and obliged him to pay to the said Husband and his Spouse and longest liver of them two and the Heirs gotten between them or their Assigneys which failzying to the Heirs of the last liver the said Mary having survived did uplift the Sum and now Iohn Iustice as Heir of the Marriage to his Father pursues his Mother to make forthcoming the Sum and imploy the same to her in Liferent and to him in Fee It was alleadged for the Defender Absolvitor because by the conception of the Bond she is Feear and so may dispose of the Money at her pleasure The Pursuer answered that the conception of the Bond did no wayes make the Wife Feear but the Husband according to the ordinar Interpretation of Law in Conjunct-fees betwixt Husband and Wife and as to the Clause in relation to the longest liver their Heirs and Assigneys the Fee could not be Constitute thereby otherwise the Fee behoved to be pendent and uncertain and in effect be in no Person so long as they live together but after the Death of either the Fee should then begin to be Constitute in the Surviver which is inconsistent and therefore the Fee behoved to be Constitute by the first words obliging to pay the Sum to the Husband and Wife the longest liver of them two whereby the Husband was Feear and might have disposed thereupon during his Life but without prejudice of his Wifes Liferent there is no doubt but this Sum might have been Arrested for his Debt and it could not be then pretended that ex evenâ—u the Wife by surviving might become the Feear It was answered for the Wife that albeit Conjunct-fees between Man and Wife do ordinarly Constitute the Husband Feear yet there are many Cases in which such Conjunct fees the Wife may be Feear and here the termination being upon the Surviver makes her the Surviver sole Feear although both were Conjunct Feears before and neither of them properly a Liferenter till by the event it did appear who should Survive neither can any such subtilty of the dependence or uncertainty of the Fee render the intention of the Parties ineffectual The Lords found that by the foresaid Clause the Husband was Feear and the Heirs of the Marriage were Heirs of Provision to him and that failzying the Heirs of the Marriage the Wifes Heirs were substitute as Heirs of Tailzie and therefore ordained the Sum to be so imployed and secured that if the Pursuer being the only Heir of the Marriage should Die before he dispose thereupon it should return to the Heirs and Assigneys of the Mother The Lady Wolmet and Dankeith her Spouse contra Major Biggar and Iames Todrig Ianuary 24. 1668. THe Lady Wolmet and Dankeith her Spouse pursues Major Biggar and the Tennents of Wolmet for Mails and Duties Compearance is made for Iames Todrig who being Assigned to an Annualrent due out of the Lands of Wolmet to the old Lady Wolmet by an Infeftment long prior to this Ladies Infeftment upon which Right there was also raised an Inhibition whereupon Todrig as Assigney pursues Reduction of the Pursuers Right and several others and obtained Decreet thereupon and now alleadges that the Lady can have no Mails and Duties because her Right stands Reduced at the Instance of the said Iames Todrig who hath also Appryzed upon his anterior Annualrent The Pursuer answered that the alleadgeance ought to be repelled because the Right of his Annualrent Appryzing and Reduction has been several years in the Person of Major Biggar who has been all that time in Possession of the Lands and therefore by his Intromission Todrigs Appryzing is satisfied within the legal It was answered for Major Biggar albeit the Right was and had been his and he in Possession yet the Appryzing cannot be satisfied thereby unlesse he had Possest by vertue of the Appryzing which cannot be alleadged because he offers him to prove that he Entered and continued in Possession many years before he got this Right by vertue of other Infeftments The Pursuer answered that by the Reduction at Todrigs Instance all Major Biggars Rights stands reduced so that albeit by them he entered in Possession yet he cannot ascribe his Possession to them after they were Reduced It was answered that albeit his Rights were Reduced there was no Removing or Action of Mails and Duties intented against him upon the prevailing Right and therefore his Possession behoved to be ascribed to his prior Possession though Reduced 2dly He having now divers Rights in his Person may ascribe his Possession to any of them he pleases against this Pursuer from whom he derived not his Possession nor the Cause thereof 3dly It was answered that the Pursuer might acquire this Right ad hunc effectum to purge it
when ever he could be found yet the Law of Nations hath for the freedom of Trade abridged it to the immediat return of the same Voyage because quarrels would be multiplied upon pretence of any former Voyage Parkman having raised Reduction of the Admirals Decreet insists on these grounds First That by the Kings proclamation Denuncing the War it is evident that the King gives only Command to seise upon Ships having in them Enemies Goods or Counterband Goods without any mention of seising them in their return which would destroy the freedom of all Trade for upon that pretence every Ship that were met with at Sea might be brought up and therefore the Kings Proclamation did justly and humanly Warrand the seisure of Ships only when the Enemies Goods or Counterband Goods is found Aboard in which case for most part the cause of seisure is sensible to the Eye wherewith there was also produced a Testificat from Judge Ienkins Judge of the Admirality Court of England by the Kings Warrand upon the Petition of the Kings Resident of Sweden wherein he having advised with the Kings Advocat general who dayly attended that Court declareth that none of them remembers that in this War any Neuter were made Pryze in their return with the product of Enemies Goods and that he knew no Law nor Custom for the same 2dly There was produced the Treaties betwixt the King and the Crown of Sweden bearing that the Swedes should be made Pryze carrying Enemies Goods or Counterband Goods si deprehendantur It was also answered to the Reasons of Adjudication that the Stile of a Commission not granted by the King immediatly but by the Admiral could be no ground of Adjudication of Friends and Allies who were not obliged to know the same or what was the Tenor of the Admiral of Scotlands Commissions but were only obliged to take notice of the Law and Custom of Nations and of the Kings Proclamations of War and as to the Admirals Commission and Decreet thereupon in Anno 1627. It could not evidence the Custom of Scotland being but a Decreet in absence and upon a Lybel bearing not only the carrying of Counterband before in that Voyage but having actually Aboard Enemies Goods the time of the seisure which Lybel is found relevant by the Admiral but it appears not that he would have found it relevant alone upon the product of Counterband much lesse that that was proven and in Decreets in absence the Lords themselves suffers Decreets to pass with far less consideration and ofttimes of course so that it were strange to fortifie the Admirals Decreets that are now quarrelled after full hearing upon an Decreet of the Admirals in absence It was answered for Captain Allan that the Pursuer could not enjoy the benefit of the Swedish Treaty because he had transgrest the Treaty and served the Kings Enemies and as to the Testificat of Judge Ienkins or Custom of England this being a distinct Kingdom is not Ruled by the Custom of England and Judge Ienkins Testificat was impetrat by the Pursuer and not upon any Commission or proposal made by the Lords and the case therein mentioned is only anent the seisures in the return with the product of Enemies Goods and says only that they do not remember that ever the Case was decided there but says not that the Courts of Admirality had found that upon any Plea or Dispute that Ships could not be taken unless they had Aboard Counterband or Enemies Goods The Lords having formerly in this Cause desired to know the Kings Pleasure whether by the Swedish Treaty which maketh far fewer things Counterband then what are such by the Law of Nations and by which Tar is not Counterband the Swedes might Loaden Tar in Norway not being their own Growth and carry it to the Kings Enemies The King returned answer negative in which the Lords acquiesced and as to the present Dispute The Lords did not find the grounds alleadged for the Privatâ—er relevant or sufficient to instruct the Custom of Scotland or the Rule of the War and had litle respect to Judge Ienkins Testimony and therefore were not clear to approve the Adjudication but before answer did declare that the Lords by their own Commission would inquire in the Custom of Nations concerning the return of Counterband or Enemies Goods both by Commissions direct to England and other places Captain Strachan contra Morison February 22. 1668. CAptain Srachan pursues the Heirs of Umquhile George Morison before the Admiral for a Ship and Goods mâ—dâ—ed with wrongously by George and others in Anno 1638. They raise Reduction on this Reason that there was no Probation but one Witness and Captain Strachans Oath taken in supplement The Lords having considered the Probation in relation to the Ship found it sufficiently proven that Captain Strachan was an Owner of an eight part of the Sâ—â—p but found that the value thereof was not proven and seing Morison and the other partners sold the Ship after they had long made use of her without Strachans consent they found that Strachans Oath in litem ought to be taken as to the value and would not put him to prove the same after so long time and for the profits thereof ordained him Annualrent since he was dispossest This question arose to the Lords whether there being three Partners beside Captain Strachan who all medled whether Morison should be lyable in solidum or only for his third part in which the Lords found the Ship being corpus indivisibile and all the Partners in a Society and that Captain Strachan being absent in the Kings Service from the time of their medling to the Kings return and the other Parties in the mean time becoming insolvent The Lords found George Morison lyable in solidum for the eight part of the Ship but as to the Wines and others that were in the Ship whereanent there was no co-partinery proven and but one Witness of George Morisons Intromission and Captain Srachans own Oath in supplement The Lords found the same not sufficient and yet allowed Captain Strachan in fortification of the Decreet to adduce further probation Gavin Cochran contra 〈…〉 Eodem die GAvin Cochran as Donator to the Recognition of certain Land holden Waird of my Lord Cochran pursues the Vassal as having Alienat the Major part and also the Subvassal to hear and see it found and declared that the Lands had Recognosced by the Alienation made by the Vassal so the Subvassal It was alleadged for the Subvassal that he was Minor and therefore During his Minority non tenetur placitari super haereditate paterna It was answered that that holds only in Disputing the Minors Rights but is not sufficient against the Obligation or the Delinquence of the Defunct 2dly The Party principally called in this Process is the Vassal who is Major and whose Fee falls to the Superior by his Alieanation and the Subvassals Right falls only in consequence so that no priviledge of
Mother done by Mr. Iohn Elâ—is Commissioner for her it was without Warrand and so null The Lords repelled both Defenses and found that the Contumacy incurred by not paying or suspending Debâ—to tempore which is the cause of the Denunciation was not taken away by the dissolution of the Marriage Patrick Dun contra Isobel and Elizabeth Dunes his Sisters Eodem die UMquhile Doctor Dun having provided 4000. Merks to one of his Daughters and 10000. Merks to another and Entertainment during their Minority that their Portion might go to the Fore bearing Annualrent did thereafter grant to Isobel another Bond of 2000. Merks whereof Patrick his Heir raises Reduction as being done on Death-bed after the Defunct had broken his Leg and the same was cut off whereof he took a Fever and Died and never went out to Kirk or Mercat The Defenders answered that they offered them to prove that albeit the Defunct happened not to come out yet he was in his leige Pousty and perfect health and did all his Affaires which did much more evidence his health then the stepping out to the Mercat 2dly The Bond in question being a Provision to a Daughter it was a Natural Obligation which the Father might do on Death-bedâ— The Pursuer answered that the Law allowed no other evidence to give Capacity to Dispone in leige pousty but going out to Kirk and Mercat and if any equivalent were accepted it would render the most Ancient Law Doubious and Elusory As to the second the Defender having been Portioned before any Adition on Death-bed had not so much as the favour of a Portion Natural The Lords repâ—lled the Defences and sustained the Summonds The Owners of the Ship called the Castle of Riga contra Captain Seatoun Eodem die THis Cause being Debated the 27th of Iuly last in which Debate Captain Seat un did chiefly insist to maintain the Decreets of Adjudication upon the presumptions and evidences that the Ship or Loadning did truly belong to the Hollandeâ—s and that their Passes and Bills were but Contrivances which the Lords found not sufficiently proven to make her Pryze Now the Captain insists upon another ground contained in the Decreets of Adjudication viz. That she was Navigat by Hollanders the Kings Enemies and therefore by the Kings Declaration of the War the Ship and Goods are lawful Pryze because the last Article of the Declaration bears expresly to take all Ships Pryzes that are Sailed by the Subjects of the United Provinces and by the Testimony of the Witnesses taken at Cromarty It was evident that the whole Company was Hollanders taken on at Amsterdame and Residenters there It was answered for the Strangers that there was a solemn Treaty perfected betwixt their King and the King of Sweden their Soveraign that Treaty behoved to be the only Rule as to the Subjects of Sweden by which there was nothing provided that a Ship should be Pryze being Sailed with Hollanders but on the contrair the Passe agreed upon by the Treaty and exprest vâ—rbaâ—im therein bears that Oath is to be made that the Vessel and Loadning belongs to Swedes but makes no mention of what Countrey the Sailers should be and bears that the Master of the Ship may be of any Nation and therefore mulâ—o magis the Sailers It was answered for the Captain that the Treaty with the Swedes cannot be the adequat Rule in relation to all Swedish Pryzes there being multitudes of Cases not touched therein and it cannot be thought the intent of the King in so short a Treaty to comprehend all the Laws of Nations at Sea and all the Cases de jure belli betwixt their Subjects but the Treaty doth only clear some most important Cases and grants special Priviledges to either Party as that such a Passe should be sufficient and that there should be no search at Sea where such a Passe is found nisi gravis suspicio subsit so that these Cases must still be Regulat by the Law and Custom of Nations and especially by the Kings Declaration of the War so that these making the Rule the Treaty can make but the exception and therefore the King by the Declaration of the War against the Hâ—llanders gave an expresse Command to make Pryze all Ships belonging to the Hollanders or having in them Goods belonging to the Hollanders or Counterband Goods going to the Hollanders or Navigat by any number of the Hollanders this must stand as the Rule seing there is nothing in the Treaty to alter the same neither doth the Tenor of the Passe not mentioning the Sailers infer any thing because the Sailers can be known of what Nation they are by their Language and it were unnecessar to cause the Swedes Depone upon Oath that they are Swedes but cannot be so well known to whom the Ship and Goods belong and therefore Oath is to be made thereupon and albeit a Passe be found Aboard conform to the Treaty whereby it is provided ne quid ulterius inquiratur in navigium honâ—â— aut homines nulla tâ—nus inquiratur it immediatly follows Quod si gravis aliqua suspâ—cio subsit that there may be seisure even where there is a Passe or if the Passe were old or vitiat or appear not to agree with the Hand and Seal of the places whence it is directed seisure might be made and therefore in this Case the whole Company being Hollanders as is evident by their Language although there had been no suspition of the truth of the Passe they might justly have been seised and confiscat conform to the Kings Declaration neither is it a good Argument that because the Treaty gives leave to have the Master of any Nation that therefore all the Sailers may be of any Nation and therefore if the Company might have been of any Nation there needed no such expression for the Master exceptio firmat regulam in non exceptis which is the more clear that by the Treaty betwixt the King and the King of Spain there is a special priviledge to the â—lâ—ndrians that they shall not be questioned as being Navigat by Hollanders in respect of the Identity of their Language which would never have been Demanded if by the Law of Nations Hollanders the Kings Enemies might have been made use of by any in Amity with him The Lords found that this Swedish Ship being Navigat by the Sailers all or the most part being Hollanders Residenters in or about Amsterdam when they entered this Voyage that the same was a sufficient ground of Confiscation in respect of the Kings Declaration of War and that by the Swedish Treaty there was no priviledge granted to the Swedes as to this matter and therefore Assoilzied from the Reduction having found it sufficiently proven by the Testimonies at Cromarty and whereas it was alleadged that these Testimonies were extorted by holding Swords and Pistols to the Companies Breasts both at Sea and after Landing to make them confess that they and Goods belonged to Hollanders The
many Witnesses on either side proved not only that the â—eithes Lybeled by the Party who Adduced them were holden and repute the true Marches for a very long time but did not express how long but some of them Deponed that Stones in the meithes were commonly holden and repute to be March Stones and so the Testimonies were contrary and if there had not been mutual Probation either Party would have proven sufficiently and neither Party having bounding Charters the question arose whether the â—pregâ—antest Probation should be preferred to give the property to that Party and exclude the other or if both Parties proving so long Possession and mutual interruptions the Probation should infer a promiscuous Possession and Right of the contraverted peice of Land and so resolve into a Commonty albeit neither Party Claimed nor Lybeled Commonty The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie albeit they found that Sir Iohn Gibsons Witnesses were more pregnant yet not so far as to exclude the others but declared that if either Party desired that piece to de divided they would grant Commission for dividing the same and setting down of March-Stones Burnet contra Nasmith Iune 19. 1668. ALexaâ— deâ— Burnet of Carlâ—ps being Creditor to Sir Michael Nasmith of â—osso pursues a Declarator against Iames Nasmith his eldest Son to hear and see it found and declared that an expired Appryzing of the Estate of Pâ—sso now standing in the Person of the said Iames is Redeemable by the Pursuer as a Creditor from the said Iames as appearing Heir of the Party against whom it was deduced within ten years after the appearand Heirs Right upon payment of the Sums that the appearand Heir truly gave out conform to the Act of Parliament betwixt Debitor and Creditor The Defender alleadged Absolâ—itor because the Act of Parliament could not extend as to his Case because the Act bears where appearand Heirs takes Right to Appyzing of their Predecessors Lands but the Defenders Father being living cannot be said to be his Predecessor or that the Defender is his appearand Heir and Statutes are stricti juris not to be extended to like Cases It was answered that Reason of the Law given in that part of the Statute being the same and rather more in this Case where there may be Collusion betwixt the Father and the Son there is no ground to except the same from the Act of Parliament the words whereof do bear this Case for in the ordinar Stile it uses to be thus express such a person to be eldest Son and appearand Heir to his Father and albeit his Father be not dead he may well be said to be his Predecessor not only in regard of his age but as being his Predecessor in the Right of these Lands whereunto the Son is a Successor albâ—it he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâ—ssors Life and therefore declared Agnes Hadden and Mary Lawder contra Shorswood Eodem die THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary Lâ—wder they pursue Magdalen Shorswood his nearest of kin to dâ—liver the same who alleadged Absolvitorâ— because the Assignation was never delivered but being made a year before the Defunctsdeath remained by him till his death and was never delivered and it is not the Subscribing of a Writ but the Delivery thereof that makes it that Parties in whose favours it is conceived unless the Party were in Family as a Fathers Câ—stody is the Childs Custody and equivalent to Delivery and unless the Writ had contained a Clause to be valide without Delivery which this doth not The Pursuer answered that this Assignation reserveth expresly the Defuncts Liferent and a power to dispose thereof during his Life which sheweth his mind not to deliver the Assignation even when he made it otherwise the Reservation in his own favour would not have been in his own hand which sufficiently shews his mind that the Writ should be valide though not delivered in his life 2. This being a moveable sum this Assignation is in effect dâ—natio mortis causa and so must be valide without Delivery for a Testament or Legacy is valide without Delivery It was answered to the first Alleadgance that the Defunct might have Delivered the Assignation and keeped the Bond so that the keeping of the Assignation was not necessary and so did not import his meaning to be that the Assignation should be valide without Delivery To the second this Assignation is in the Terms and Nature of a proper Assignation and is a Right inter vivos and not donatio morâ— is câ—usa because donatio mortis causa is but as a Legacy affecting only the Deads part but if this Assignation had been Delivered it would have affected all and so could be no donatio mortis causa and albeit it was not Delivered it remains the same kind of Right The Lords Repâ—lled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâ—med that the Defunct had no Children and the said Agnes Hadden who was to have 400. merks of the sum was Cousin-german to the Defunct Relict of Galrigs contra Wallace of Galrigs Eodem die THe Relict of Galrigs pursues for Mails and Duties upon her Seasine given propriis manibus It was alleadged for Galrigs no Process because the Seasine is but assertio notarij without a Warrand there being neither a Contract nor Obligation to give such a Seasine It was answered that Instruments of Seasine given to a Wife pâ—oprâ—is manibus have a sufficient Adminicle and presumption by the Marriage and the duty of the Husband to provide the Wife especially where there is no Contract nor other Provision but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine and his Creditors which is a strong presumption he would give her something in lieu thereof Which the Lords sustained Steuart of Torrence contra Feuars of Ernock Iune 24. 1668. JAmes Steuart as Donator to the Ward of the Laird of Ernock by the Lord Semple of whom Ernock held the Lands Ward pursues the Possessors for Removing who alleadged absolvitor because they brooked their Lands by Feues granted by the Laird of Ernock The pursuer answered non relevat unless the Feues were consented to or Confirmed by the Superiour for by the Feudal Law no deed of the Vassal can prejudge the Superiour when the Lands are Ward The Defenders alleadged their Feues needed no Confirmation because they are warranted by Law by the 72d Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King Ita est The first Act cannot extend
old Rescinded Act pro tanâ—o it must be in the same case as Taxation and Maintenance which is ever accounted debitum fundi It was answered that these burdens Imposed by the Rescinded Parliaments are not in the same case with other publick Burdens especially where it is but a particular Act relating to particular persons and Shires without Citation of them for if they had known of this Act they would have petitioned the Parliament that singular Successors might have been excepted as they were in other Acts of this nature The Lords Suspended the Decreet and found that as they were singular Successors they were not lyable David Dick contra Ker. Iune 26. 1668. DAvid Dick as Donator to the Escheat of Ker insists in a special Declarator for payment of a sum due to the Rebel The Defender alleadged Absolvitor because it being a Bond bearing Annualrent it fell not under the single Escheat It was Replyed that Bonds bearing Annualrent are still holden moveable until the first Term of payment of Annualrent and is Disposeable by Testament if the Defunct die before that Term but here the Rebellion was before the date of the Bond and so the sum fell to the Fisk the day it was Subscribed It was answered that the 32. Act Parliament 1661. declares Bonds bearing Annualrent to exclude the Fisk without any exception or limitation The Lords having considered the Act found that it left Bonds bearing Annualrent in the same case that they were formerly and found that before the Term of payment of Annualrent they were moveable Peterson contra Captain Anderson Iune 30. 1668. CAptain Anderson having taken a Ship whereof Peter Peterson was Master and obtained the same declared Prize by the Admiral upon two grounds one that the Ship was sailed a great part of the company being Hollanders then the Kings enemies The other that albeit it was pretended that the Ship belonged to Swedes yet by several presumptions and evidences it appeared that is was but a conveyance and that the Ship truely belonged to Hollanders There is now a Reduction raised of the Decreet and the first ground thereupon Debated and Decided It was alleadged for the Strangers that they being Swedes their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden by which it is expresly provided that the Subjects of Sweden having such Passes as are exprest in the Articles shall not be Seased or brought up and particularly in bona homines nullo modo inquirâ—tur viz. Where such a Pass is found aboard and the said Pass being here found aboard the Ship was unwarrantably Seased and unwarrantably declared Prize upon pretence of being sailed with Hollanders because that Article takes away all question about the men and so gives liberty to the Swedes to make use of any Mariners they please It was answered that the Reason of Adjudication was most just and this Reason of Reduction ought to be repelled because the Kings Proclamation denuncing the War gives express warrand to sease all such Ships as had any number of Hollanders therein which must stand as the Rule unless the Swedes had by their Treaty a particular exception derogating from that Rule which they have not but on the contrary the Treaty contains an express provision that they may make use of a Hollands Master and not unless he became a Citizen of some City of Sweden and be sworn Burgess thereof but upon the former ground there needed no such Article for Masters and all might thereby be Hollanders And as to the Article of the Treaty concerning no further inquiry there is subjoyned quod si gravis aliqua suspitio subsit in which case notwithstanding of the Pass Seasure might be made but here there was gravis suspitio that the Ship or Goods belonged to the Hollanders the Master and major part of the Company being Hollanders and the Pass mentioning a Ship of an hundred Tuns whereas this Ship was two hundreth Tuns It was answered for the Strangers that the Kings Proclamation could be no Rule to the Subjects of any other free Prince but the Law of Nations or their own Treaties behoved to be the Rule and by the Law of Nations the King could not hinder his Allies of any Commerce or Trade with His Enemies which they were accustomed or free to do before the War except such Acts only wherein they partaked with his Enemies by furnishing provisions of War or Counterband Goods and so the King by no Proclamation could hinder the Swedes to hire and make use of Hollanders which rather weakned then strengthned his Enemies and in this case the making use of Hollanders was necessar because other Sailers could not be had when the Ship was bought and that Article of the Proclamation ought to be benignly interpret that when any Ship carries Hollenders as Passengers the same should be Seased but not when these were Servants and Mariners to other Nations It was answered for the Captain that the Kings Proclamation of the War behoved to be a Rule to the Kings Judges and that it was most consonant to the Law of Nations and it was impossible without the same to know what Ships did truly belong to Allies and that in the Spanish Treaty with the King that priviledge was specially indulged to the Flandrians not to be quarrelled upon the account of Hollanders because of the Identity of their Language which would have been unnecessar if by the Law of Nations all might have so done The Lords Repelled the Reason of the Reduction and found that ground of the Adjudication that the Ship was Sailed with a great part of the Company being Hollanders Relevant alone and that the same was sufficiently proven by the Testimony of the Steirsman and another Witness of the Company and therefore Assoilzied from the Reduction The Minister of Elgin contra his Parochioners Eodem die THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin which belonged of old to the Canons of the Cathedral Kirk of Elgin and were by them Feued to the Defenders who alleadged Absolvitor because the Yeards being a part of the Canons Portions and in effect their Gleibs had in no time past ever payed Viccarage which is consuetudinar and local both as to the payment and the kinds for in some places Teind Lint and Hens are payed and in others not but the ordinar Viccarage being Stirks Wool Milk and Lamb there is none of these to be had in these Yeards It was answered that no Prescription could take away Teinds upon the forbearance of demanding it by Beneficed Persons who are but Administrators and cannot Delapidat otherwise all Benefices might be destroyed 2ly Lands that have been always Ploughed and so payed Parsonage and becoming Grass are lyable to Viccarage albeit it cannot be proven that ever they payed any before The Lords found the Defense Relevant unless the Pursuer could prove that Viccarage has been payed out of these
condescended on and instructed that the Defunct was holden and reputed Bastard at the time of his Death Which the Lords found Relevant And it being further alleadged that there was produced a Legittimation taken by the Bastard from the King which did import his acknowledgement of being Bastard and was stronger then being holden and repute Bastard It was answered non constat that the Defunct took this Legittimation but some other might have done it in his Name without his warrand The Lords found the Legitimation sufficient to Instruct the Bastardy It was then alleadged that the Legitimation Denuded and Excluded the King not only giving power to the Bastard to make Testament but to Dispone of his Heretable Rights even on Death-bed It was answered that whatever the Stile of such Gifts be they are never extended to Heretable Rights but only to a Faculty to make Testament which Bastards want by the Law but if the Bastard made no Testament and did Exhaust his Moveables by universal or particular Legacies the Executor nominat could only have the third which follows the Office and the King would have the rest of the Inventar not Exhausted 2dlie All general Declarators being summar these Debates are only competent in the special Declarator The Lords Repelled the Defense hoc loco and reserved the same to the special Declarator Relict of Skink contra Earl of Roxburgh Eodem die UMquhil Cornelius Skink pursues the Earl of Roxburgh upon a Bond and the Earl having alleadged that the Bond was partly paid by Skinks Intromission with the Earls Pay in Holland and partly made up of exorbitant Usurary of 16. per cent Monethly as appears by a Compt of the same date with the Bond subscribed by Skink and whereunto the Bond relates there was an Act of Litiscontestation in Anno 1659. sustaining the alleadgance as to the Intromission and Usury after the Bond but repelling the same as to what preceeded the Bond and appointed a Compt and Reckoning Skink being dead his Relict as Executrix having Transferred the Act craves now the Compt to proceed conform thereto The Defender answered that he ought to be Reponed against the Act in so far as it Repelled the Alleadgance upon the Usury preceeding the Bond as being unjust The Pursuer answered that the opponed the Act of Parliament Confirming the Judicial preceedings in the time of the Usurpation and specially Ratifying Acts and Interlocutors of the Judges The Defender answered that this Act was unwarrantably Extracted there being a posterior Interlocutor which is now produced under the hand of the President at that time ordaining the Compt to be not only upon the exorbitant Usurary after the Bond but-also before the same The Lords ordained a new Act of Compt and Reckoning to be Extracted allowing the Defender to be heard upon the exorbitant Usury before the Bond also before the Auditor in respect of the said posterior Interlocutor Andrew Bruce contra Laird and Ladie Stenhope February 20. 1669. ANdrew Bruce Merchant in Edinburgh pursues the Laird of Stenhope for payment of a continued Tract of Merchant Compts insert at several times in his Compt Book as being taken off by Margaret Sinclar in the name and for the behove of the Laird of Stenhope upon these Grounds First That the Ware was worn and made use of by the Laird of Stenhope and his Lady and so was converted to their use 2dlie That Margaret Sinclar was entrusted by the Laird of Stenhope and his Lady to take off Ware for them from time to time as appears by several Missive Letters of theirs to the said Margaret so that Margaret having taken off the Ware and being entrusted so to do they must pay the same 3dlie Not only was Margaret Sinclar trusted to take off Merchant Ware in general but particularly to take off the same from Andrew Bruce upon these Grounds First Because there is produced an Compt in the Pursuers Books before the Accompts in question which is not contraverted so that Andrew Bruce was Stenhops Merchant when Margaret Sinclar began to be Imployed 2dlie By one of the Ladie Stenhops Letters it appears that a Satine Petticot and Lace was taken off from Andrew Bruce by Margaret upon Trust of Stenhope and the Lady desires that Margaret may endeavour to get the Lace taken back and their Names put out of the Compt Book 3dlie The Laird and Ladies Oathes being taken ex offiâ—â—o the Lady acknowledges that she was several times in Andrew Bruces Shop with Margaret Sinclar and that she was present with Margaret Sinclar when the last part of the Accompt of 114. pounds was taken off all which are sufficient Evidences of a Warrand or Commission to Margaret to take off the Ware in question from the Pursuer The Defender answered that none of these Grounds were Relevant to oblige him for albeit he acknowledge the Goods to be Converted to his use there is nothing to make it appear that he had any medling with the Pursuer but by the Letters written by him and his Lady to Margaret Sinclar made use of by the Pursuer it is evident that he only imployed Margaret Sinclar to furnish him upon her Credite and did prohibite to put him in any Merchants Accompt saying that he would be only her Debitor and no others so that it were of most dangerous consequence if the making use of Good shâ—uld infer an obligement to pay the Merchant whose they were at first though payment were made to the Person intrusted as in this case the Letters to Margaret Sinclar bears that she was paid of what was taken off formerlie by her and there are severals also subscribed by her Hand for a part of the Particulars contained in these Accompts neither can any Trust put upon Margaret Sinclar to take off Ware in general Oblige the Defender unless it had born To take off the same upon his Faith and Credite and not to take off the same upon Margaret Sinclars own Credite Neither doth the Circumstances adduced infer a special Commission to take off from Andrew Bruce or prove that he was ordinary Merchant or so much as that Stenhope knew that the Particulars in the Accompt were taken off upon his Credite and were put in his Name in the Book except that which concerns the Petticoat and thâ— last articles of the 114. pounds especially seing his Letters prohibits her to put his Name in a Merchants Accompt and seing Andrew Bruce for several years never so much as intimate the Accompt to Stenhope till Margaret Sinclar was dead The Pursuer answered that in rem versam is an unquestionable Obligation in Law albeit nothing of a Commission were instructed unless the Defender can alleadge that he made payment to Margaret Sinclar and proved by her Hand Writ and not by his own Letters 2dlie There is nothing more ordinar then to take off Ware from Merchants by Taylors and Servants who cannot be thought to have the Ware of their own but that they must take
Cautioner for the Earl of Hume and was content that Witnesses should be Examined anent the Inhibition and Apprizings being still in the Possession of the Earl of Hume in his Charter Chist but not upon any other ground to take away his Assignation and solemne Right which cannot be taken away by Witnesses but scripto vel juramento and most of these presumptions are but weak conjectures no wayes inferring that Ioussie was payed by the Earl of Humes Means and the great friendship that was betwixt Annandail and Hume alleviats the same it being the cause for which Annandail forbore to take Infeftment or do Diligence thereby to allarum Humes Creditors that his Inhibition would always work his preference and on that same ground did consent to several Creditors Rights there being enough remaining for him and which was an evidence that this Right was generally known and that without it Hume could not give Security The Lords ordained Witnesse sexâ— officio to be Examined upon all the points alleadged for â—learing of the Trust. The Kings Advocat contra the Earl of Mortoun and Viscount of Grandison February 29. 1669. THe Kings Advocat pursues a Reduction of the Rights of the Earldom of Orkney and Zetland granted by the Deceast King Charles the first or by this King himself to the Earl of Mortoun or Viscount of Grandison and produces a Contract betwixt the King and the Earl of Mortoun in Anno 1643. and a Charter following thereupon whereby the Lands are granted and Disponed blench with several extraordinaâ— Priviledgâ—s as having right to the Bullion and other Customs of Goods Imported there and also a Charter in Anno 1646. by the King to the said Earl relating to a Dissolution in the Parliament 1644. containing nova daâ—tus and bearing also blench there is also produced an Infeftment granted to the Viscount of Grandison and after the said Infeftment a Ratification by the Parliament 1661. In the which Ratification there is contained a Dissolution of the Earldom of Orkney and Zetland in favours of Grandison wherein also the Dissolution formerly made in favours of Mortoun in Anno 1644. is particularly Rescinded upon this consideration that neither the King nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed nor Dilapidat without an express aâ—t of his own Ratified by Parliament After this Dissolution in favourâ— of Grandison the King granted no new Infeftment to Grandison The Advocat having holden the production satisfied with the Writs produced Mâ—â—toun and Grandison compeared not at all and some others having publick Rights from them being called did also pass from their compearance and submitted to the Kings favour and compearance being made for some of the Vassals holding of Mortoun they were not admitted because they produced no Wâ—its to instruct there Interest so the Lords proceeded to Advise the Reasons of Reduction which were upon these points First That by the Law and several particular Acts of Parlâ—ament the Patrimony of the Crown being the Lands and Customs annexed to the Crown might not be Disponed by the King unless the samine upon weighty Motives and Considerations had been Dissolved by his Majesty and the Parliament and Dissolutionsâ— made after Infeftments are not valide Parliament 1597. cap. 236. and by the 234. Act of that same Parliament the annexed Property can not be Seâ— otherwise but in Feu Ferm so that the Earldom of Orkney being annexed to the Crown by the annexation produced in Process and the Contract and Charter 1643. being before any Dissolution is absolutely null and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records and though it were it is Rescinded in the Ratification in favours of Grandison in the Parliament 1661. upon so weighty a Reason as the King or his Commissioner not being present And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of privat Rights yet that cannot reach to the Patrimony of the Crown especially seing in that same Parliamentâ— 1661. His Majesty having Revocked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation he might not do to the Derogation of his Honour or Crown the Parliament has Ratified the same Revocation as to all Rights granted since 1637. Contrair to the Laws and Acts of Parliament preceeding 1637. and likewise by an express Act of Parliament it is provided that no Ratification in Parliament shall prejudge the Crownâ— or supply a Dissolution and that none of the Kings Customs which are also annexed can be effectually Gifted The Lords found these Reasons Relevant and proven and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted Pargilleis contra Pargilleis February 26. 1669. UMquhile Abraham Pargilleis having no Children but one Bastard Daughter Dispones some Lands acquired by him to Abraham Pargilleis eldest lawful Son of that Daughter Iohn Pargilleis his Brother Son and nearest Heir pursues a Reduction of that Disposition as being done in lecto and the Defender alleadged that the Defunct went abroad to Kirk and Mercat thereafter unsupported and the Pursuer replying that he was supported and either Party contending for Preference the one that he walked free of himself and the other that he was supported The Lords considering the advantage to the Party that had the sole Probation would prefer neither but before answer ordained Witnesses to be adduced for either Party concerning the Condition the Defunct was in as to Sicknesse or Health when he Subscribed the Disposition and the manner of his going abroad whether free or supported and now the Lords having Advised the Testimonies by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition and that he continued Sick till his Death It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken six days after the Disposition and that after the same he went three times to Calder and about three quarters of a Mile off and that he was helped to his Horse and from his Horse and that he was helped up Stairs and down Stairs but that he walked a foot unsupported in the Mercat of Calder and up and down from my Lords House being three pair of Buts of rising Ground It occurred to the Lords to consider whether the Sickness proven would have been sufficient not being â—â—orbus sonticus or in extremis or whether the presumption of Health sufficient to leige poustie was enough that he came out to Kirk and Mercat albeit the Sickness remained and whether the probation of the Sickness remaining could take away that presumption and whether his being helped to his Horse and from his Horse or up and down Stairs and his Man holding his Bridle as he Rode to and returned from Calder did infer that
are not Counterband but are necessary in some quantity in every Ship for Calsing and by the Treaty betwixt the King and the King of Spain there is an express Article that though Counterband be deprehended in Spainish Ships only the Counterband shall be Prize and not the Ship and Goods It was answered that this alleadgeance was competent and Omitted before the Admiral It was answered that these cases with Strangers are to be Ruled by the Law of Nations and not by peculiar Statutes and Customs The Lords reponed the Strangers to their Defenses as in the first instance and also allowed the Privateer to insist on any grounds for making of the Ship Prize which he did not formerly insist on whereupon the Privateer insisted upon two grounds First Because by the Law of Nations and the Kings Proclamation of War Allies and Neuters must not make use of the Kings Enemies to sail their Ships and therefore the Proclamation of War bears expresly that all Ships shall be seised bearing any number of Men of the Kings Enemies and this Ship had the major part of her Company of Hollanders then the Kings Enemies as is evident by their own Depositions taken before the Admiral 2dly This Ship was not only sailed by Hollanders but the Ship or major part thereof and the Loadning belonged to Hollanders and any pretext that the same belonged to the King of Spains Subjects is a meer Contrivance it being most ordinar the time of the War for the Hollanders to Trade under the name and covert of the Flemish the King of Spains Subjects which appears in this Case by many evidences First Both the Merchant and major part of the sailers by their own confession are Hollanders and they have adduced nothing to be a sufficient probation that the whole ship and Goods belonged to Clepan in Bruges but on the contrair the Skippers first Testimonie at Linlithgow bears that this Ship and Goods belongs to Clepan and Revier which Revier being taken Aboard acknowledges that he was born in Holland but says that two or three years before the seisure he dwelt in Gent and Brussels under the King of Spain and having a Diligence granted to prove his Domicil the time of the War and Capture all that he proves is that in March 1667. he hired a House in Brussels and began to set up there and that sometime before he had lived with his Mother in Gent but proves not how long or that it was his constant Domicil for that was an ordinar contrivance for Hollanders to hire Houses in the Spainish Netherlands and to pretend to be Subjects there but they being Hollanders at the beginning of the War concurring and contributing to the War albeit they had truely removed tempore belli they continued to be the Kings Enemies much less can their taking a House else where sufficiently prove that they totally deserted the Hollanders and concurred not with them in the War it being easie to have Domicils in diverse places 2dly The contrivance is yet more evident in that the Goods were Shipped by Rivier at Fleck in Holland and sailing from thence to Copperwil in Norway and was taken having no Pass from the King of Spain for this Voyage but had a pretended Pass from the Duke of York which albeit it bears relation to the same Ship called Charles the second yet by the Testimonies of the Witnesses it is evident to have been granted two years before this Ship was Built which is an evident cheat and for the Pass from the Governour of the Netherlands it bears but to last for a year and was expired before this Voyage and as for the Pass from the Chamber of Commerce it was granted for a former Voyage from Ostend to France which is clear by the Testimonies which bear also that there could be no Pass gotten for this Voyage because this Ship was lying in Fleck and not in the King of Spains Ports and so the Loading could not be their lying and wanted Oath taken thereupon that it belonged not to the Kings Enemies as is requisite in such Cases It was answered for the Strangers to the first ground of Adjudication that it was no way sufficient First Because the King of Spain being an Allie by a perpetual League his Subjects were not to be regulat by the Kings Proclamations but by the solemn Treaties betwixt both Kings which setting down the causes of Seisure must necessarly import that seisure should be for no other cause then is therein exprest 2dly The Articles bear expresly that any of the Spainish Subjects having a Pass conform to the formula set down in the Articles should be no further troubled which formula requires nothing as to what Countrey the Sailers are of and therefore there can be no seisure upon the account of the Sailers for albeit by the Swedish Treaty the Swedes are allowed to have a Dutch skipper ◠〈◊〉 becoming a sworn Burgess of some Town in Sweden and he residing there from whence the Lords have inferred that the Swedes may not sail with Hollanders and have declared some of them Prize upon that account yet this cannot be exended to the Spanish Subjects in whose Treaty there is 〈◊〉 such thing 3dly By an Act of the Council of England produced it appears that his Majesty gave Order that all Flandrian Ships that were taken should be dismist if there were no other ground of seisure but that they were sailed by Hollanders until his Majesty review the Flandrian Concessions and give further Order and there is a particular Concession to the Flandrians beside this Treaty in regard their Language and the Hollanders is one◠they should not be seised upon the account of being sailed with Hollanders and 〈◊〉 to the other ground the Passes and Testimonies prove sufficiently that the Goods belong to Clepan in Bruges and there is but one Testimony of the Skipper that Revier is Owner which Testimony was taken at Linlithgow the Clerk or Interpreter having Interest in the Caper and the Skippers Testimony being again taken by the Admiral at Leith says nothing of Revier and albeit it did he is but one Witness and any Hollander deserting Holland the time of the War ceases to be an Enemie because the King invited such as would desert his Enemies to come live in England◠so that it is both his Majesties Interest and Intention in any way to weake◠his Enemies by causing their Subjects desert them It was answered for the Privateer that the Strangers could not pretend Right to the Spainish Treaty seing they wanted a Pass conform thereto and that it could not be inferred negative from the Spainish Treaty that seisures should only be for the Causes therein exprest there being no such Article in the Treaty and the Law of Nations and the Kings Proclamation being the Rule of War the Treaties with Allies do only explain or restrain the same and gives exceptions from the Rules for instance the Spainish Treaty makes Counterband
not to inâ—er seasure of the Ship and Goods which is valide though a Priviledge derogator to the Law of Nations but speakes nothing whether the carrying of Enemies Goods shall make the Ship Prize so that that Priviledge not being granted by the Articles the Law of Nations takes place and the Ship may be declared Prize likeas in the case of Overvails Ship Decided in the last Session all that is there alieadged being here alleadged Overvail not instructing any Flandrian Concession to sail with Hollanders his Ship was Declared Prize upon that same very ground and the Testimony of the Skipper at Linlithgow is most unsuspect it being taken before the Skipper was otherwise prompted to Depone neither had the Clerk any interest but the most that can be pretended is that he had relation to some of the Owners which signifies nothing and the Skipper by his Office being the person Commissionat by the Owners who by his Office may Sell or Burden the Ship without a special Commission his Oath makes a full probation against the Owners who Intrusted him especially here where the Merchant and most part of the Company by their own confession are Hollanders which proves sufficiently for the Privateer unless they instruct that the Ship and Goods belonged to free men and them only which they have not done evidently and surely by all that they have produced but the Skipper who is the main Man to be trusted is contrary therefore it may be and is presumed to be a Contrivance to carry on the Trade of de Rivier a Hollander under the name of Clepaâ— in Bruges his Brother in Law The Lords upon the whole matter declared the Ship and Goods Prize butâ— found not that the want of a Passe alone was sufficient neither did they put it to the Vote by it self whether the sailing by Hollanders alone would have been sufficient notwithstanding of the Treaty and the Kings Order Extracted out of the Council of England which though it related not to Scotland some of the Lords thought it was sufficient unless it did appear that the King had given contrair Order others thought not unlesse that Concession could be otherwise showen Thereafter the Srangers offered to prove positively that there was a Concession which the Lords would not Sustain in regard that the last Session the first of Iune was given before answer to prove the Concession and the Term was now circumduced for not proving thereof Scot contra Langtoun Iune 19. 1669. IOhn Graham of Gillesby having Wodset certain Lands to Iames Langtoun he did thereafter with consent of Earl of Annandail Superior Eike twelve hundreth Merks to the Reversion and the Earl Ratified the former Wodset and Graham with his Consent of new Disponed again the Lands for the Sums in the first Wodset and Eike and Added some other Clauses the first Wodset was before the Act between Debitor and Creditor and by vertue thereof the Wodsetter was in Possession the second Wodset was after the said Act the Superior Consented only to the second wodset and of the same Date gave a Gift of Grahams Liferent to Robert Scot whereupon Robert having obtained general Declarator pursues now special Declarator for the Mails and Duties of the Wodset Lands as falling under the Liferent of Graham the Granter of the Wodset It was alleadged for Langtoun the Wodsetter that he ought to be preferred to the Donator not only for the first Wodset which was constitute before the Rebellion but for the second Wodset comprehending the Bike because the Superior by his Consent to the second Wodset without any Reservation had Communicat all Right in his Person and consequently the Liferent Escheat of Graham the granter of the Wodset in the same manner as if he had given the Wodsetter a Gift thereof and so no Gift no being anterior to the other could prejudge the Wodsetter It was answered for Scot the Donator that the alleadgeance is no way Relevant to exclude his Gift unlesse the Wodsetter could alleadge a Deed Denuding the Superior anterior to the Pursuers Gift but here the Superiors Consent is not anterior but of the same days Date and may be posterior and therefore the Gift which is the habilis modus must be preferred unto the Superiors Consent to the Wodset which is but indirect and consequential to infer the Right as Liferent at least both must be conjoined and have equal Right as done simul semel It was answered for the Wodsetter that the Superiors Gift must not be preferred to the Consent though of the same Date because he was then in Possession of the Wodset Lands and needed no Declarator and the Gift is but imperfect until a general Declarator which is the Intimation thereof no Declarator being requisite to the consent of the Superiour to the Wodsetter and so is preferable The Lords preferred the Wodsetter It was further alleadged for the Donator that the Wodsetter must restrict himself to his Annualrent and be countable to him for the superplus seing now he makes an offer to find the Wodsetter Caution and so he must either quite his Possession or restrict conform to the Act betwixt Debitor and Creditor The Wodsetter answered that his second Wodset bearing not only a Ratification of the first Wodset in all points but a Disposition of the same Lands falls not within that Clause of the said Act of Parliament which Regulates only Wodsets prior to that Act and the new Disposition makes the old Wodset as extinct and innovat The Donator answered that there being a jus quaesitum conform to the Act as to the former Wodset the posterior Ratification cannot derogat therefrom or take it away unless it had been exprest and in meritis causa it was alleadged that the Wodsetter had near the double of his Annualrent The Lords preferred the Donator as to the Superplus more nor the Annualrent of the first Wodset and ordained the Wodsetter to Restrict The Wodsetter further alleadged that the Gift was Antidated and Simulate to the Rebels behove and so accresced to the Wodsetter Which the Lords Sustained and found the Simulation probable by the Oath of the Superiour and the Witnesses insert in the Gift Hamiltoun of Corse contra Hamiltoun and Viscount of Frendraught Iune 22. 1669. WIshart of Cowbardie having Wodset his Lands of Bogheads and others to George Hamiltoun from whom the Viscount of Frendraught has now Right he did thereafter sell the same Lands to Iohn Hamiltoun of Corse who took the Gift of Wisharts Fischeat and having thereupon obtained general Declarator pursues now in a special Declarator for the Mails and Duties of the Wodset Lands Compears George Hamiltoun and the Viscount of Frendraught and produced the Wodset Right and alleadged that the Liferent Right cannot reach the VVodset Lands because the Gift is Simulate to the behove of Wishart the Rebel and common Author and so is jus supervenient authorâ— accrescens successori to defend this VVodset Right and condescends that it is
Maybol for the time to the Lord Ochiltrie which came by progress in the Person of Ballimore having then in his Person Barganies Tack so that Ballimores taking that Right acknowledges the Parsons Right and passes from his former Tack unless in his Right he had expresly reserved his former Tack so that neither Ballimore nor these Assigneys can now make use of Barganies Tack it being a certain Ground that the taking of a posterior Tack having a greater Tack Duty or a shorter Term evacuats a prior Tack in that same Person It was answered that the alleadgance is no wayes Relevant Ballimore not having immediatly taken a second Tack but only finding another Tack by progress in the Person of the Lord Binnie to remove that impediment and shun his trouble he purchased Right thereto but never brooked thereby The Lords found that the taking Right to another Tack did not infer a passing from the former Tack unless it were proven that the posterior Tack had a greater Duty or shorter durance and that Ballimore had paid the said greater Duty to Bonar or bruiked expresly by the later Tack June 29. 1669. CAptain having taken at Sea obtained him to be declared Pryze upon this ground that he carried Clapboard which is expresly mentioned as Counterband in the Commission of the Admiral of Scotland given to the Caper and was the same Stile with the Commission Recorded in the Books of Admirality given in the time of War in the year 1628. The Strangers raised Reduction of the Admirals Decreet on this Reason that Clapboard being a general Name comprehending many kinds of Boards that Clapboard could be only understood Counterband which had not a promiscuous use in Peace and War but was instrumentum bellicum carried by the Kings Allies to his Enemies to be Sold to them for assisting of the War which this Loading could not be because it consisted all of Knappel cutted all at three Foot and an half length the proper use whereof is for Barrelis and is no wayes instrumentum bellicum The Lords having given Commission to some of their number to visite the Knappel and to Examine Sea-wrights whereupon they did Examine a number whether this Timber in question was useful for War or Shipping and most Deponed that it was not and some Deponed that it might be made use of to be Pins or Tubs but that it was not ordinarly made use of for Shipping but common Oak which was far cheaper The Lords did also before answer ordain either Party to adduce such Testificats and Evidences as they could from the Admiralties of Neighbouring Nations what was the Custom of Nations whether upon such Timber as this the Ships of Neuters or Allies were made Prize The strangers produced several Testificats one from the Custom-House of Amsterdame bearing that such Timber was not accounted Counterband in Holland and one from the Spanish Admiralty at Ostend bearing that they knew not that by their Custom and the Custom of other Admiralties such Timber was Counterband one from a Deputy who served in the French Admiralty at Dunkirk declaring that in that Admiralty such Timber was not accounted Counterband one from the Kings Auctorney and another Lawer who served in the Court of Admiralty of England bearing that during the War none had been declared Prize upon that account The Privateer produced no Testificats but alleadged that there ought no respect to be had to the Testificats produced it being easie to impetrat such and there should a Commission been direct by the Lords to the several Chief Admiralties of the Neighbouring Nations to express what was their Custom in this Point Notwithstanding the Lords found the Ship Prize as carrying this Clapboard being contained in the Admirals Commission a great part of the most able of the Lords being of the contrary Judgement Earl of Argile contra His Vassals Iune 30. 1669. THe Earl of Argile being Donator to the Forefaulture of the late Marquess of Argile his Father Pursues an Improbation of the Vassals Rights and craved Certification The Vassals alleadged no Certification against their Rights because any Right the Earl had was qualified by the Kings Gift that he should only have Lands paying 15000. pounds and that the rest should be conveyed to the Creditors and the Creditors thereupon claiming the Property of the Vassals as falling within the Forefaulture His Majesty Wrot a Letter Declaring that it was not His meaning by the Gift that the Creditors should have any more Lands conveyed to them then the remainder of the Property belonging to the late Marquess over and above this Earls part and that the Superiority should entirely belong to the Earl and his Successors by which His Majesties Mind and Pleasure is evident that the Earl should only have the Superiority and not the Property of the Vassals 2dly The Vassals offered to produce what Rights they had flowing from the House of Argile but there could be no Certification as to what they had not in respect of the Troubles especially no Certification for want of Confirmation of the Vassals Rights by the King because several of the Vassals continued Loyal to His Majesty during all the Troubles and some of them losed their lives in His Service opposing the said late Marquess himself So that it can never be thought to be His Majesties purpose or pleasure so to restore this Earl the Marquess Heir appearand as thereby to Forefault the Vassals who adhered to His Majesty and who durst not in time of these Troubles have fought Confirmations His Majesties Exchequer being then in the manadgement of these who were in opposition to Him It was answered for the Pursuer to the first that neither by the Pursuers Gift from His Majesty nor by the foresaid Letter there is nothing granted to the Vassals in opposition to the Earls Right but in opposition to the Creditors that they should have no hand in the Vassals Estates Likeas His Majesty by His last Ratification and Charter under the Great Seal produced hath most distinctly and clearly exprest His meaning and pleasure that by the foresaid Gift or Letter His Majesty did only Exclude the Creditors from the Estates of the Vassals but thereby Declares that not only the Superiority and Casualities thereof should belong to the Earl but the Property of all these who had not sufficient Rights from the House of Argile and Confirmations from the King and that the Earl might Intent all Actions competent of Law for that effect It was answered for the Vassals that if their true condition and adherence to His Majesty had been understood His Majesty would not so have Declared and that post jus quaesitum to them by the Kings Gift and Letter no posterior Declaration impetrat from His Majesty should prejudge them at the least they humbly craved that the Lords according to their former Interlocutor would Represent the Case to His Majesty that His Pleasure might be known and that His Majesty might interpose with my
living Witnesses do agree that the arrestment was made by the Caption at the Tolbooth Door in presence of the Jaylour and though it was not so formally done by Commanding the Jaylour yet it was sufficient that the Prisoner was Commanded in the Jaylours presence which is sufficient albeit not so formal in making the Jaylour Witness neither can respect be had to the Jaylours Oath denying that he was Witness because confessing he was Jaylour he is a Party lyable for suffering the Rebel to escape neither doth it import that after so long a time the affirming Witnesses do not remember all the Circumstances seing he affirms the arrestment to be made and that by his own advice he being also a Messenger nor is the Pursuer obliged to Dispute the Fame of the Messenger who lived at so great a distance from him and was continued in that publick Trust undeposed so that there being three Witnesses insert in the Execution of the Arrestment one of them who is an inhabile Witness as a Party denying another affirming the third being Dead doth unquestionably stand as a proving Witness for where are many Witnesses in a Writ or Execution if there be one living that affirms all that are Dead affirm with him though other living Witnesses deny Much more here where of three two being alive the one affirms the other denys but iâ— a Party concerned and the Messenger also affirms The Lords found that there being here no formal arrestment made to the Jaylour astructed by the Testimoâ—ies of the Witnesses and that the intimation thereof was clearly improven they Assoylzied the Magistrates but if the arrestment had been good they would not have â—ound the Intimation necessar whether the Town keeped a Book or not but that the arrestment made to the Keeper of the Tolbooth whom they intrusted were sufficient Dowglas of Lumsdean contra Dowglas Iune 22. 1670. UMquhil Dowglas of Lumsdean Dispones his Estate to Archibald Dowglas his Son reserving power to himself at any time during his Life to burden the Estate with four thousand merks and did thereafter grant a Bond of four thousand merks in favours of Elizabeth Lyel his Wife in Liferent and of Iohn Dowglas their Son in Fee who thereupon pursues the said Archibald for payment The Defender alleadged Absolvitor because the Reservation in the Disposition being in favours of the Defunct can only be understood of a Legal power to burden according to Law Ita est This Bond of Provision was granted by the Defunct when he was not in legitiâ—ua potestate but on Death-bed especially seing the Reservation does not bear a power to Dispone at any time time in his Life etiam in articulo mortis which is the Clause ordinarly adjected when the meaning of Parties is that the power should extend to Deeds on Death-bed and thereupon the Pursuer hath intented Reduction which he repeats by way of Defense The Pursuer answered that the Defense is no ways Relevant because the priviledge excluding Deeds on Death-bed is introduced by Law in favours of Heirs only that the Defunct may not prejudge his Heir on Death-bed but if a Party Dispone he may qualify his Disposition as he pleases and he who hath so accepted the Disposition cannot quarrel the same and albeit these words etiam in articulo mortis are sometimes adjected propter majorem caâ—telam yet the words at any time during his Life are sufficient to import either in his Health or in his Sickness The Defender answered that whatsoever might be alleadged if the Disposition had been to a Stranger of that interpretation of the words yet this Disposition being granted to the Disponers own eldest Son and appearand Heir it must be understood only of such Deeds as might be done against an Heir and here the Creditors do also concur who in place of the Heir might pursue the Reduction and against whom the Personal objection of acceptance cannot be alleadged The Pursuer answered that the Defender was not appearand Heir because it is notourly known that his Father begot him in Adultery upon the Wife of Sir Alexander Hume for which Adultery she was Divorced from her Husband and albeit he did co-habit with her thereafter as his Wife that cannot infer as in other cases that she was his Wife because Marriage cannot consist betwixt the Adulterer and the Adulteress and all their Issue are disabled to Succeed so that the Pursuer of the Reduction is the eldest Son and appearand Heir in whose favour the Provision is made 2dly Albeit the Defender were or could be appearand Heir yet here having accepted a Disposition of the whole Estate Burdened with this Provision his acceptance excludes him who is thereby bound and cannot pretend to any priviledge of an Heir for albeit re integra he might Renunce the Disposition and return to bruik as Heir now he cannot having bruiked by the Disposition and for the Creditors concourse they are not Pursuers and they may insist in any Action competent to them by Law but cannot oppose this Personal obligement whereby the Defender by the acceptance of the Disposition in these terms is become obliged to pay the Pursuer the Sum in the Reservation The Lords Repelled the Defense and found that the Reservation in the terms as it stood did extend to burdening of the Estate at any time the Disponer pleased and was in capacity of Sense and Reason though on Death-bed and found no necessity to dive in the questions concerning the Defenders Procreation and capacity of Succession seing he had accepted and bruiked by the Disposition so qualified and did not admit the Creditors to oppose this Conclusion but reserved their Rights as Accords Elizabeth Finlaw contra The Earl of Northesk Iune 25. 1670. ELizabeth Finlaw and her Children as Executors to Robert Beatâ—â—e did Assign to the Umquhile Earl of â—athie a Bond granted by the Laird of Duâ— to the said Robert 〈◊〉 of 2200. Pound and the Laird of Morphie standing infeft under Trust in Duns Estate grants a Bond of Corroboration to Eathie obliging him to pay all Sums due by Dun to Eathie himself or to which he was Assigned by Duns Creditors thereafter Morphie grants a second Bond of Corroboration to Eathie but derogation of the 〈◊〉 Bond of Corroboration obliging him to pay what Sums were due by Dun to Eathie for himself or as Assigney and that out of 〈◊〉 superplus of Duns Estate more then payed Morphie himself The Earl of Eathie transfers the Bond of 2200. Pounds and both these Bonds of Corroboration in favours of the said Elizabeth and her Children and the Translation bears for Sums of Money payed by them to Eathie and bears that the second Bond of Corroboration was Delivered but bears not that the first was Delivered neither bears it the obligement to Deliver the same the Translation also bears Warrandice from Eathies own Deed. The said Elizabeth and her Children having pursued Morphie upon the said second Bond of Corroboration he
Cross of the Shire but at the Mercat Cross of the Regality in the English time when Regalities were supprest 2dly That the Appryzing was led at Glasgow and neither within the Shire of Air where the Lands ly nor by Dispensation at Edinburgh And albeit the Letters bear a Dispensation to Appryzâ— at Glasgow and that the Denunciation was made accordingly for the Parties to appear at Glasgow yet there was neither Law nor Custom for such a Dispensation and Parties are not obliged to attend but at the head Burgh of the Shire or in communia patria at Edinburgh 3dly The Pursuer has also an Appryzing though posterior yet preferable because solemn and orderly according to the Custom then being It was answered that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities which were then supprest where they were used at the head Burgh of the Shire according to the Custom then and so validats such Appryzings yet this Defender having according to the standing Law of the Land Denunced at the head Burgh of the Regality the contrair unwarrantable Custom cannot annul his Appryzing proceeding according to Law And as to the Dispensation at Glasgow which was nearer the Lands then Edinburgh whatsoever might have been said to the inconveniency of granting such a Dispensation yet being granted it is valide and was then frequent to grant such Dispensations The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time at the head Burgh of the Shire upon Denunciation that it was more solemn and preferable as to the manner of Denunciation than that which was upon Denunciation at the head Burgh of the Regality at that time But the Lords did not determine whether such an Appryzing would have been valide if there had not been a more formall one Nor whether the Dispensation being granted at Glasgow was valide Margaret Scrimzeor contra Alexander Wedderburn of Kingennie Iuly 19. 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie and two others to be Tutors to his Daughter She now pursues a Tutor Accompt wherein this Question arose and was reported to the Lords by the Auditors viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished and became Insolvent and craved to be liberate thereof on that Ground in his Discharge It was alleadged for the Pupil that the Tutor must be lyable from the time that he knew that he was Nominat Tutor for albeit he might have abstained absolutely yet once accepting the Tutory by Nomination of a Testament wherein a Legacy was left to himself he must compt as if he had accepted it at the first for which there was adduced many Citations of Law It was answered for the Tutor that in the Roman Law Tutors were obliged to accept so soon as they knew their Nomination unless they could free themselves by the excuses allowed in that Law But with us it is absolutely free to accept or refuse without any excuse and it is only the acceptance that obliges and so can have no effect ad preterita as to that which perished before acceptance especially in this case the Defender being but one of three Tutors Nominate he ought to have had a time to endeavour with the rest to accept and his lying out was in such a time in which Judicatures did cease by War and Troubles the English after the Battel of Dumbar in September 1650. being possest of Edinburgh and the publick Records there was no Session keeped till the year 1652 or 1653. The Lords found the Tutor was not lyable for any thing that perished before his acceptance The Executors of Walter Hamiltoun contra The Executors of Andrew Reid Iuly 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid for payment of a Bond of 122. pounds Sterling and of a Bond of eighteen pounds Sterling due by the said umquhil Andrew Reid to the said umquhil Walter Hamiltoun The Defenders alleadged that they ought to have allowance of fifty pounds Sterling payed to Walter by Iohn Fleeming by Andrew Reids Order and of Sterling payed to Mckneich upon a Bill drawn by Walter Hamiltoun upon Andrew Reid to be payed to Mckneich and for proving thereof produced missive Letters Written by Walter Hamiltoun to Andrew Reid the one bearing that Fleeming had payed a part of the 50. pound and he doubted not but that he would pay the rest And the other bearing that Mckneich had got payment It was answered for the Pursuers that the Missive Letters could not instruct a Discharge or abate those clear Bonds because they did relate to Bills and Orders upon which payment was made and except those Bills and Orders can be produced the Letters relating thereto can have no effect for it must be presumed that the Bills and Orders have been retired by Walter Hamiltoun as having been allowed in other Bonds which then have been delivered by VValter to Andrew Reid it being the ordinar course amongst Merchants to interchange Bills and Bonds without any other Discharge neither do they take notice of their Missives relating to such Bills or Orders nor can it be supposed they can remember the same The Auditors in this Accompt having taken the opinion of several knowing Merchan's anent their Customs in this point they did all report in Writ and did all agree in this that missive Letters relating to Bills Orders or Discharges had no effect unless the Bills Orders or Discharges were produced and that Merchants neither did nor could have notice of such Missives to retire or interchange the same they did also visit Walter Hamiltouns Compt Book by which there appeared several other Bonds and Accompts betwixt the Parties beside these And in which also the sums contained in these Letters were set down as payment in part of the other Bonds and Compts whereby it appeared that the Bill and Order mentioned in the Letter were interchanged with the former Bonds The Lords found that the missive Letters relating to the Bill and Order had no Effect unless the Bill and Order were produced Hugh Moncrief of Tippermalloch contra Magistrates of Pearth Iuly 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth from whence he having escaped he pursues the Magistrates of Pearth for payment of the Debt who alleadged absolvitor First Because their Tolbooth was sufficient and the Rebel had escaped vi majori having broken the Stone in which the Bolt of the Tolbooth Door entered and forced the Lock in the time of Sermon and that immediately after the Rebel escaped out of the Town and was met with Friends that were trysted there at the time of his escape 2dly They had laid out all wayes thereafter to search for
yet if Possession hath been had thereafter for the space of fourty years uninterrupted it becomes an unquestionable Right and all other Rights are excluded But Secondly A greater favour is showen as to the Title of prescription of Lands belonging to any Party titulo universali as Heirs to their Predecessors in which their is no Charter required but Seisings one or moe continued and standing together for the space of fourty years either proceeding upon Retours or upon Precepts of clare constat so that the Seising in question proceeding upon a Precept of clare constat cannot be a sufficient Title for prescription unless the Precept of clare constat â—which is the Warrand thereof were produced 2dly The said provision of the Act requires that the Seising one or moe must stand and be continued for the space of fourty years which cannot be alleadged in this case because by the Defenders production it is clear that the said Alexander Mcnaughtan to whom the Seising was granted Lived not for fourty years after the Seising so that unless his Heir had been entered and had Possest by vertue of the Heirs Seising to perfyt the fourty years the Defense of prescription is not Relevantly alleadged The Defender answered that his Defense of prescription stands Relevant upon this one Seising only and he oppones the foresaid Clause in the Act of Parliament where an Heirs Title of prescription is a Seising proceeding upon a Retour or Precept of clare constat and does not mention that the Seising and Precept shall be a sufficient Title as it does in the case of Lands acquired where it expresly requireth both a Charter and Seising and it had been as easie in this Clause to have required a Seising and Retour or Precept whereas it doth only require a Seising on a Retour or Precept so that the Seising relating the Retour or Precept is sufficient and by long course of time sufficiently instructs the being of the Retour or Precept As to the second answer the meaning of the Act of Parliament by a Seising one or moe standing together is that the said Seising be not Reduced for our Law doth ordinarly oppose standing and falling by Reduction so that albeit the Party Seised Died within fourty years after the Seising his appearand Heir continued his Possession and being one Person in Law with him did Possess by his Seising and if it were otherewise understood many absurdities would follow for if a Person were Infeft as Heir and did Possess thirty nine years thereafter Dying then if his Heir were not Infeft within the year he should have no Title of prescription though within the fourty year six Heirs consequently were Infeft all their six Seisings with thirty nine years Possession though their appearand Heir should continue an hundreth years thereafter in Possession would not induce preâ—cription yea taking the Act Literally it can never have effect unless the Heir Infeft Live and Possess after his Infeftment fourty years which is very rare for if there be more Heirs that Succeed there must be still an intervale betwixt the Death of the one and the Seising of the other and so the Seisings could not be said to be continued but discontinued or interrupted for Possession is not continued if the Possessor cease to Possess one year so that prescription being of common Interest and Advantage to the Leiges the same ought to be ampliate in the interpretation thereof and not straitned The Pursuer answered that he opponed the clear words of the Act of Parliament which does not only require fourty years continual Possession but also that it be by Seisings staâ—ding continuing together fourty years and that upon very solide Reason for if both Charter and Seising be required for a Title to prescription in Rights acquired It cannot be imagined that an single Seising should be sufficient in Rights devolved by Succession without requiring any thing in place of the Charter so that if neither the Precept nor Retour be required nor yet the continuance of the Seising either standing in the Person of the first Heir or renewed in the Persons of the subsequent Heirs which certainly is of purpose put to astruct the Right in place of a Charter or other Adminicle of the Seising and therefore the standing of the Seisings is not here opposed to their being Reduced but their falling by the Death of the Person Infeft whereby according to the ordinar Terms of Law the Fee falleth in Waird or Nonentry in the hands of the Superior neither can a subsequent Heir Possess by the Seising of a prior Heir because Seisings are not given to Heirs but to the individual Person Seised but Charters and other Rights given to Parties and their Heirs may be a Title to their Heirs to Possess but not a naked Seising and as to the inconvenience it would be far greater if one single Seising were sufficient and would open the Door to all Forgery after Parties and Witnesses are Dead but if more Seisings be required if the first Person Die it is much more difficult to Forge diverse Seisings by diverse Nottars and diverse Witnesses which may be redargued by the Hand-writ of some of the Nottars or survivance of some of the Witnesses and what is alleadged upon a Seising continuing thirty nine years or of six subsequent Seisings within that time is easily retorted by consideration of one Seising whereby the Party Infeft Lived and Bruiked but a year whethet that would be a sufficient Title for prescription or if six consequent Seisings proceeding upon Charters and thirty nine years Possession yea or a hundred years Possession all which would make no Title of prescription unless a Charter were also produced as is clear by the Act so we are not to consider equivalencies but in a Statute must take it as it is made and not make it and as for the inconvenience alleadged that there must necessarly be intervales it imports not for the continuance of Seisings is not required to be so exact as the continuance of Possession but subsequent Heirs being Infeft albeit there be an intervale their Seising as in many other cases will be drawn back to the Death of their Predecessor if there be no medium impedimentum by any Process intented in the interim so that at least there must be a Seising standing when the Possession begane and a Seising standing when the first fourty years is compleat but here there was no Seising renewed though there be a hundred years after the first fourty years and a full progress as to all other Lands The Lords found that there was no necessity to produce or instruct that there was a Precept or Retour otherewise then by the relation of the Seising but found that a Seising not having fourty years Possession by the Life and Bruiking of the Person Seised and never being renewed in his Successors is not a suffient Title of prescription and therefore Repelled the Defense in this Process the Defender was
permitted to alleadge the Lands in question to be Part and Pertinent of his other Lands whereof he shew a full Progress and alleadged a continual Possession by doing all Deeds of Property that the Subject was capable of and the Pursuer alleadging that these Lands were severally kend and known from all the Defenders Lands contained in the said Progress and that he and his Predecessors had exercised all acts of Property that could be done in the case of a Forrestry such as the Lands in question were and that after the Defenders alleadging on a several Infeftment by the foresaid Seising and so acknowledging these Lands to be separâ—â—â—m tenâ—mentum he could not return to alleadge Part and Pertinent so considerable a tract of Ground six or seven Miles long yet the Lords would prefer neither Party to the probation but before answer ordained either Party to adduce Witnesses anent their Possession and the several specialities by them alleadged that by the probation the Lords might see the just Interest of either Party which might resolve into a promiscuous Commonty or into a Property to the one and a Pasturage or other Servitude to the other Marion Dods contra Lawrence Scot. Feb. 16. 1671. BY Contract of Marriage betwixt Iames Scot and Marion Dods Marion is obliged to pay in Tocher a thousand pound to the said Iames at the next Candlemass and the said Iames is obliged to imploy the same to him and her in Conjunct Fee and to the Heirs of the Marriage which failzing to her Heirs and Iames having Died without Children the said Marion pursues Lawrence Scot as his Heir to imploy the Sum conform to the said obligement who alleadged Absolvitor because the Pursuer has yet the Tocher in her own hand unless she can show a Discharge It was answered First That the Parties having lived together 22. years it must be presumed that the Husband was payed and had the Custody of the Discharge 2dly The Husband by his Testament acknowledges that the Sum was payed It was answered that this written Obligation cannot be taken away by such a presumption and the Assertion of the Defunct in the Testament has been procured by the Wifes importunity in her Husbands weakness and however cannot prejudge the Heir and can import no more then as legatum liberationis which can only affect the Deads-part of the free Geir The Lords found the presumption with the acknowledgement in the Testament a sufficient payment of the Tocher against all Parties having interest William Gordon contra Sir Alexander Mcculloch of Ardual February 17. 1671. WIlliam Gordon as Donator to the Recognition of the Barony of Cardines by allienation of the Major part thereof pursues a Declarator of the Recognition against Sir Alexander Mcculloch who stands now Infeft therein who alleadged no Process because the Pursuer produces no Charter to show the Lands to hold Waird neither doth he produce the Infeftments Libelled by which the Recognition is alleadged to be procured and if he shall get a Term to prove and so Litiscontestation be made the Defender will either be excluded from his Defenses which he cannot propone or know before he see the Infeftments or otherwise two Litiscontestations may be in the same Cause by admitting of exceptions after the Term and albeit these Infeftments be not the Pursuers own Writs yet he ought to have used an incident upon his Summons to have compelled the Havers to produce the same and so before Litiscontestation the Defender might have proponed his Defense It was answered that the Pursuer is obliged to produce no more in initio litis then his Gift of Recognition from the King for the Law presumeth that the King is Superior and that the Lands are Waird unless the Defender offer to prove the contrare As for the Infeftments whereby Recognition is incurred they are not the Pursuers Title but media concludendi which he may produce ad modum probationis The Lords Sustained the Process and assigned a Term to prove the Infeftments Libelled for inferring the Recognition and reserved all the Defenders Defenses after the production thereof in the same manner as if they were now produced Mrs. Katharin Mcgil contra The Viscount of Oxenfoord Eodem die THe Deceased Viscount of Oxenfoord having named his Son Executor and universal Legator he gives a Bond of Provision to umquhile Mistrisse Mary one of his Daughters in satisfaction of her Portion natural and Bairns part there are yet three Children beside the Heir and the said Mrs. Mary did survive her Father and in the Compt and Reckoning of his Executory the three surviving Children claimed half of the Moveables as the Bairns part It was alleadged for the Viscount the universal Legator that a fourth part of the Bairns part behoved to belong to him which would have belonged to Mrs. Mary because the Bond granted by the Defunct being in satisfaction of Mâ—ries Bairns part her Bairns part must come in place of it and not accresce to the rest of the Bairns but must belong to him as Executor and universal Legator especially this Bond being granted on Death-bed is only effectual as a Legacy whereby the Defunct did burden his own Deeds part which can be no otherways understood then thus that he would make up Maries Portion to ten thousand Pounds her Bairns part being in the first end thereof and it cannot be thought his meaning to exhaust his Deads part further or to gift any thing to the rest of the Bairns by the accrescence of Maries part It was answered that such Bonds of Provision are most ordinar bearing it to be in satisfaction of their Bairns part which has ever been so interpret that the Portion of the Bairn so satisfied accresceth to the rest of the Bairns and it was never heard that the Heir or Executor burdened with such Bonds of Provision did thereupon recur to seek that share of the Bairns part which was satisfied by the Bond of Provision neither is there any odds whether the Provision were by Legacy or Bond for the Reason of recourse being because the Heir or Executor is burdened to satisfie that Bairn and so in either case doth claim the share of that Bairn neither was it ever so understood that Fathers granting such Bonds of Provision did not thereby leave intire the Bairns part to the remanent Bairns The Lords found that Mrs. Maries share of her Bairns part did accresce to the rest of the Bairns and did not belong to the Executor either as a part or in place of any part of the ten thousand pound but the samine did solely burden the Deads part Agnes Dundasse contra The Laird of Ardrosse and the Laird of Touch. February 18. 1671. THe Laird of Ardrosse having granted Bond to umquhile Mr. Henry Mauld and his Spouse and their Heirs of 8000. Merks and after his Decease he granted a Bond to the Relict bearing to have borrowed two thousand Merks from her and obliging him to pay
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
Pursuer cannot purge his Appryzing as now being in the Person of the appearand Heir by the Act of Parliament 1661 betwixt Debitor and Creditor by payment of what truely the appearand Heir payed because the express Provision in that Act is that where ever the appearand Heir of the Debitor shall acquire Right to expired Apprizings hereafter which cannot extend to this case because the Right to this Apprizing was acquired before that Act and because it was not an expired Appryzing but the Legal then running It was answered that albeit the Disposition of the Appryzing granted to the appearand Heir was prior to the Act yet the Right was purchased posterior to the Act for the Disposition could not give Right but only the Infeftment following thereupon for if after that Disposition any other had been Infeft upon Appryzing or Disposition by the Defenders Author that posterior Infeftment would carry the Right so that the Author cannot be said to be divested or the appearand Heir invested or stated in the Right till his Infeftment which is after the Act of Parliament To the second The Pursuer answered that the Defenders Appryzing albeit it was Redeemable when he acquired Right thereto yet it becoming now irredeemable in his Person it cannot be denyed but he has acquired Right to an irredeemable Appryzing albeit it was not irredeemable when he acquired the Right yet he hath acquired Right to that Appryzing that now is irredeemable for the Extinction of the legal Reversion cursu temporis is a Right accrescing to him and acquired by him and no Heretage to him and seing the Words of the Act are capable of this interpretation there can be no doubt of the Legislators mind or that it should be thus interpret because otherwayes that excellent Provision would be evacuate for the appearand Heir would alwayes acquire Right to an Appryzing before the Legal were expyred though he should pay the Appryzer the full sum and would make no use of it till the Legal were Expyred and thereby carry the Right of the whole Estate though it were of twenty times more value But the only Motive of that Act of Parliament being that albeit the Law gives Appryzers the Right of all that they Appryze at random if they be not Redeemed within the Legal yet the Appryzer is ashamed to take so great Legal advantage and therefore ordinarly compones with the appearand Heir who being favourable makes no Bonds to bruik the whole Estate of his Predecessor excluding all his other Creditors and therefore this Remeed is introduced which will be evacuate if the Act of Parliament be not thus interpret and that interpretation should be ever followed which is according to Equity and whereby the Statute may stand and not be eluded The Defender answered that this Statute being Correctory of the Common Law is strictly to be interpret and not to be extended and the Acquisition of Rights being ever interpret from the Disposition and not from the Infeftment thereon multo magis should it be so interpret in this case And as to that part thereof anent the Expyring of the Appryzing the Pursuers Interpretation is not only constrained but inconsistent with Justice for ubi subest Remedium ordinarium non est recurrendum ad medium extraordinarium for if the appearand Heir acquire Right to an Appryzing unexpyred the Reason and Motive of the Statute ceases for both the Debitor and Con-creditors may Redeem from the appearand Heir and can pretend no necessity of extraordinary Remeed especially if the appearand Heirs Right be not latent but publick by Infeftment The Lords found that the appearand Heirs Right being only become Real by Infeftment after the Act of Parliament that it was then to be understood to be acquired when the Author was Denuded and the appearand Heir Invested so that no posterior Right from his Author could Exclude him And found also that albeit the appearand Heirs Right were during the Legal yet if it stood in his Person till the Legal were expyred that the same fell within the Act of Parliament and found it Redeemable by what the appearand Heir truly payed within ten years to be counted from the Date of the acquiring of the Right conform to the words of the Act and not from the time the Appryzing became expyred thereafter Scot of Hassendene contra The Dutches of Buccleugh Eodem die UMquhil Scot of Hassendene having no Children Disponed his Estate to Buccleugh his Chief who granted a Back-bond of the same Date bearing the Disposition to have been granted upon the ground foresaid and obliges himself and his Heirs that in case Hassendene should have Heirs of his Body to succeed him that he should denude in favours of these Heirs and now his Son and Heir born thereafter pursues the Dutches to Denude who alleadged Absolvitor because the Back-bond being now fourscore years since is long ago Expyred It was answered that albeit the Date be so long since yet the Prescription runs not from the date but from the Death of the Pursuers Father which is within fourty years for the Pursuer could not be his Heir before he was Dead and the Back-bond bears if Hassendene had Heirs to succeed to him It was answered that Heirs oftimes were interpret Bairns that might be Heirs and if this Pursuer had pursued in his Fathers Life he could not have been justly excluded because his Father was not Dead and he actually Heir and so valebat agere in his Fathers Life It was answered that although in some favourable Cases Heirs be interpret to be Bairns that might be Heirs yet in odiosis it is never so to be interpret and there is nothing more odious than to take away the Pursuers Inheritance freely Disponed to Buccleugh by his Father in case he had no Children upon Prescription by such an extensive interpretation of the Clause 2dly If he had pursued in his Fathers Life he might have been justly Excluded because if he had happened to die without issue before his Father Buccleugh had unquestionable Right and so during his Fathers Life he could not be compelled to Denude The Lords found that the Prescription did only run from the Death of the Father and that this Pursuer could not have effectually pursued in his Fathers Lifetime Blair of Bethaick contra Blair of Denhead Iuly 22. 1671. PAtrick Blair of Bethaick as principal and Patrick Blair of Ardblair as Cautioner granted Bond to Iean Blair and failing of her by Decease to her Children equally amongst them for the sum of 2550. mâ—rks upon 5th of May 1624. there were five years Annualrent resting at the Death of the said Iean Blair and now Captain Guthry her Executor pursues the Representatives of the Cautioner for payment thereof who alleadge Absolvitor because the last of these Annualrents being due in Anno 1630. There is fourty years run before this pursuit or any other Diligence and so the Bond it self is Prescribed and specially these years
possession and free Trading on the River on which it stood was found not to be burdened with Anchorage Measurage Tunnage and Weyage granted by the King thereafter to another Burgh in Stations on that same River though cled with 40. years possession but neither universal nor peaceable but interrupted February 6. 1666. Town of Glasgow contra Town of Dumbartoun A Burgh Royal being pursued by one who had Lands within their Burrow-Lands and Houses within their Town were found not lyable for any Stent out of his personal Estate or Trading or for the Towns debts or second Ministers Stipend unless he had consented or had been in immemorial custom of payment Iuly 22. 1668. Bosewel contra the Town of Kirkaldy A Burgh Royal and their Trads-men were found not to have Right to hinder the exercise of Trads-men no ways adjacent to the Town to exercise their Trade upon pretence of the Act of Parliament Prohibiting Work-men to exercise their Trades in the Suburbs of Royal Burrows Iaâ—uary 7. 1671. Laird of Polmais contra Trads-men of Stirling CAPTION was granted summarly upon supplication against a Bankrupt who had unexpectedly and fraudulently broken and fled though he was not Rebel but the Kings free Leidge November 30. 1665. Creditors of Mason Supplicants CASVS FORTVITVS was found not to Liberate the Grasser of a Horse that broke his Neck where the Owner of the Horse appointed him to be keeped in at hard meat Ianuary 29. 1666. Scot contra Gib A CAVSE ONEROVS of a Disposition by one Brother to another was found not to be instructed by the Narrative thereof but behoved to be instructed aliunde November 19. 1669. Whitehead contra Lidderdail A cause onerous of a Disposition was found not instructed by its own Narrative or the Acquirers Oath though he was not a conjunct person with the Disponer seing the Disposition bear to be to two persons for themselves and to the behove of others whose interest was evacuate as being filled up after an Inhibition and the Disposition did not express what the Acquirers own Interest was Iuly 15. 1670. Lady Lucia Hamiltoun contra Boyd of Piâ—con A CAVTIONER for Executors was found not conveenable till the Executor be discust and that Decreet is not a sufficient discussing without Registrate Horning though the Executor have no Lands and though it was alleadged he was Bankrupt Iuly 24. 1664. Brisbâ—â—e contra Monteith A Cautioner in a Testament was found conveenable and comptable with the Executor before they were discust but superceeded all Execution against the Cautioner till the Executor be first Discust December 2. 1662. Dowglas contra the Lady Edmonstoun A Cautioner for an Apprentice was not liberate from causing the Apprentice serve his time and pay damnage for his absence because the Merchand suffered him to go over Sea and intimate not to the Cautioner to restrain him yet the penalty was modified to 50. pounds Iune 17. 1663. Allan contra Paterson Cautioners conjunct getting Assignation from the Debitor were found to have access to the rest allowing their own part but are not obliged to accept their part of what they truely payed by Composition Iuly 18. 1664. Niâ—bit contra Lesly A Cautioner was not found lyable to pay unless the Debitor Assign him to the debt and all security he had from the principal thereof Ianuary 10. 1665. Lesly contra Gray The contrary was found Iuly 10. 1665. Hume contra Crawford of Kerse So this is arbitrary and according to the favour of the case A Cautioner as Law will being obliged to present a party at all the dyets of Process and pay what should be decerned against him if he did not produce him within Term of Law having produced the Party and taken Instruments protesting to be free he was found liberate albeit at that same time the party produced an Advocation and was not Incarcerate seing the Baillies might have Incarcerate him notwithstanding of the Advocation February 20. 1666. contra Mcculloch A Cautioner as Law will not being both judicio siâ—ti judicatum solvi was liberate by puting the party in prison though not judicially when the cause was called Iuly 10. 1666. Thomson contra Binnie A Cautioner in a Suspension of a Bond wherein there were five Cautioners being distressed having payed and obtained Assignation from the Creditor was found to have accesse against the first four Cautioners as if he had been Cautioner with them allowing his own fifth part February 3. 1671. Arnold of Barnkaple contra Gordoun of Cholme A CEDENTS Oath was found to prove against an Assigney being the Cedents Son in the same Family having no â—eans of his own to acquire and the Assignation being gratuitous November 30. 1665. White contra Brown CERTIFICATION was not sustained against the Writs granted to the Defenders Authours but such as were called for though the Writ were alleadged to be in his own hand and these Authours fully Denuded Ianuary 3. 1662. Hume of St. Bathinâ— contra Orre and Pringle Certification was not admitted against the Letters and Executions of an Appryzing there being no Reduction intented till 30. years thereafter November 20. 1666. Blackwood contra Purves Certification was not admitted against a Writ Registrate in the Register of Session where the Extract was produced albeit the principal was not produced and there were pregnant evidences of Falshood ibidem Certification contra non producta was stopped upon producing and offering to dispute that the Writs produced excluded the Reducer without necessity to the Defender to declare that he would make use of no more and the Ordinary appointed to hear him thereupon but if they sufficed not he behoved with the next to produce all or declare he would make use of no further else Certification to be granted December 7. 1667. Earl of Lauderdale and Wachop contra Major Bigger Certification was refused against a Defender producing an express Infeftment of the Lands in question and the pursuer alleadging that they were part and pertinent of the Lands exprest in his Title he was ordained first to instruct them part and pertinent before the Defender was obliged to take a Term to produce Ianuary 20. 1669. Hay Clerk contra Town of Peebles Certification extracted was found not to terminate the Process of Improbation but that in the same Process the Pursuer obtained Witnesses examined as to the Forgery in so far as it depended not on the inspection of the Subscriptions and that upon production of Copies the Principals having once been judicially produced before by the Defender compearing who now wilfully keepeth them up November 9. 1669. Lady Towie contra Captain Barclay Certification against a Decreet of Valuation was found to have no effect against a Liferenter publickly Infeft not called though she had no right to the Tâ—ind but only to the Benefite of the Valuation to liberate the Stock of any further burden Iuly 15. 1670. Major Bigger contra Cunninghame of Dankeith Certification was found null by Reply being in absence and
as the rest of his children or else to pay a Modification for his aliment albeit the Father was indigent seing the Son had no Means or Calling to aliment himself Ianuary 13. 1666. Dick contra Dick. A Father was sound to be lawful Administrator to his Son in his Family not only in his Pupillarity but Minority as curatorâ— honorarius not lyable to oâ—â—mission or exclusive to other Curators but deeds done without his consent were found null albeit his Son resided not in his Family but followed the Law living still on his Fathers charges and having no Calling or Patrimony to maintain himself neither was his Fathers Subscribing with him found a sufficient authorizing of him seing he subscribed with him as Cautioner for him December 7. 1666. Menzeis contra Fairholme A Father taking a Bond blank in the Creditors Name and filling up his Brothers Name therein and obtaining an Assignation from him to his daughter was not found as a Bond of Provision Revockable by the Father in respect the Bond was Registrate in the Brothers Name November 20. 1667. Executors of Trotter contra Trotter A Father was not found obliged for Annualrent of a Legacy uplifted by him belonging to his Son as being his Tutor of Law the Son being Alimented by the Father and in his Family December 15. 1668. Windrham contra Eleâ—s A Father granting Bond to a Bairn in satisfaction of her Portion Natural was found thereby to increass the Bairns part of the rest of the Bairns and not to apply that Bairns part to the Heir Executor or universal Legator as they who were obliged for the Bond of Provision comprehending the Bairns part February 17. 1671. Megil contra Viscount of Oxenfoord A FEW containing a clause irritant expreslyâ— to be null upon the Failzle was found not to be purged at the Bar where offer of payment was made in which it differs from a Feu not having that clause February 13. 1666. Laird of Wedderburn contra Wardlaw Feus of Ward-lands granted before the Act of Parliament 1666. against Feus was found valide albeit granted by these who held Ward of Subjects without consent of their Superiour Iune 24. 1668. Steuart of Torrence contra Feuers of Ernoch A Feu was found to be Renunceable by a Feuer to free him of the Feu-duty albeit it was constitute by a muâ—ual contract obliging the Feuer and his Heirs to pay the Feu-duty yearly seing by a Back-bond of the same date he was allowed to Renunce when he pleased which was found effectual to take away that personal obligement being extrinsick to the Feu though in the Feudal Contract against a singular Successor in the Feu February 1. 1669. Brown contra Sibbald A FEW-Dâ—VTY was found personally to affect a Liferenter for these years only whereof she lifted the Rent Iuly 19. 1665. Windrham contra the Lady Idingtoun FOREFAVLTVRE of a Paricide as having killed his own Mother being gifted by the King and Infeftment thereon was found to have no effect unless there had been a doom of Forefaulture pronunced by the Iustices but not upon the ordinary course against absents declaring parties Fugitives for not underlying the Law which can only reach their Moveables Iuly 30. 1662. Zeaman contra Oliphant Forefaulture having with it dishabilitation of the Forefault persons Children declaring them incapable of Lands or Estate in Scotland whereby the Sons Estate fell in the Kings hand and was disponed to a donatar who set Tacks and the Son being restored by Sentence of Parliament as an Infant not accessory to the Crime The Infeftment and Tack thereon were found to fall without calling the Persons interressed before the Parliament notwithstanding of the Act 1584. Prohibiting Restitutions by way of Reduction and declaring Rights granted medio tempore by the King to be valide which was not found to extend to dishabilitation of the Children but to the principal Forefalture February 24. 1665. Dowglas and Sinclar her Husband contra the Laird of Wedderburn Here both the dishabilitation and remission thereof proceeded without citation Forefalture and five years possession of the Forefalt person before the Forefalture makes a valide Right notwithstanding of the posterior Act of Parliament for registration of Seasines and Reversions c. Yet interruption within the five years was found to elide the same by Inhibition and granting a new Corroborative Right especially where citation was used immediatly before the five years albeit the corroborative Right was post commissum crimen Iuly 23. 1666. Earl of Southesk contra Marquess of Huntly Forefalture and five years possession was found not Relevant by exception or reply without a reâ—our by an Inquest Iune 13. 1666. Hume contra Hume Forefalture gives the King or his Donator five years Rent of any Land the Forefalt person was in possession off the time of the Sentence whether by Tack or not Ianuary 24. 1667. Inter eosdem In Forefalture a donatar was found excluded by Appryzing at the instance of the Creditors of the Forefalt person who had comprized before the committing of the Crime and had charged the Superiour after the crime but before the Process of Forefalture Iuly 6. 1667. Creditors of Hume of Kâ—llo contra Hume The Donatar of Forefalture pursuing Removing was found not to be excluded by an Inâ—eâ—tment on an Appryzing granted by the King being then immediate Superiour before the Gift which was not found equivalent to a Confirmation but past in Exchequer of course without notice December 9. 1668. Earl of Argile contra Stirling Forefalture was found to exclude a Creditor founding upon a clause in the disposition made to the Forefalt Person by his Father reserving a power to himself to affect and burden the Lands disponed by Wodset or Annualrent for such a sum though the Father had granted a Bond to the Pursuer declaring the sum to be a part of the Reservation seing there followed no Infeftment by Resignation or Confirmation by the King Iuly 12. 1671. Learmoâ—th contra Earl of Lauderdail Forefalture Vide Gift Hague contra Moscrop and Rutherfoord FRAVD of Creditors being insisted on to Reduce an additional Ioynture after the debt appryzed on the Liferenter offering access to the Appryzer for his Annualrent and to be totally excluded if it were not Redeemed within the Legal it was Sustained Relevant here the Husband was neither bankrupt nor insolvent but there was no ready execution because of the additional Ioynture February 10. 1669. Lady Greenhead contra Lord Lour Fraud of Creditors upon the Act of Parliament 1621. was not found Relevant by Reply without Reduction though of a disposition by a Father to a Son in a small matter Iune 19. 1663. Red contra Harper Fraud of Creditors was not inferred by a clause in a Contract providing a Ioynture to a Wife with condition of restricking her self to a part that the superplus might belong to the Bairns for their Aliment the whole Ioynture being only proportionable to the condition of the parties November 16.
Discharges of his Rent and also Discharges of publick burdens unless by writ or his Masters Oath he prove they were not allowed December 2. 1664. Veatch contra Paterson Presumption that Tickets of publick burdens were allowed to Tennents in their Rent was sustained to elide the Tennents pursuit thereon for payment thereof albeit his Tack bear a clause to relieve him of all publick burdens Here the Tennent left the Land several years before the pursuit and never did any diligence to get these allowed but it was sustained by the Masters Oath that these were not allowed December 20. â—664 Paterson contra Veatch Presumption of a Wifes Warrand to borrow a smal sum and impignorat a Bond therefore was sustained she having the Bond in her custody February 4. 1665. Paterson contra Pringle PRIVILEDGE of Burghs to arrest persons of find Caution of answer as Law will was found to extend to the Pear of Leith as a part of the Burgh Royal of Edinburgh its priviledge and if done by the Water Baillie but not if in the Burgh of Batony of Leith or by the Baron Baillie Ianuary 18. 1663. Hamiltoun contra Mitchel and Keith Priviledge of Burgh was â—ound not to extend to Incarcerat unfreemen found within their Burgh till they find Caution as Law will albeit by a former Decreet they were Decerned to desist from Merchandice competent to free Burrows and that thereby they might only seize upon these Goods by the Act of Parliament Ianuary 30. 1663. Town of Linâ—â—thgow contra Borrowstounness PROBATION of immemorial possession or Custom was not found instructed by a Decreet mentioning a former Decreet wherein the same was proven unless the Testimonies were extant or produced December 13 1664. Bishop of the Isles contra Hamiltoun Probation of a Disposition being onerous to exclude â—ucrative Succession and absolvitor thereon in a Process was not found sufficient as repeated from another Decreet not being de recentâ— except it had been after a long time when Witnesses were dead and in that case their Testimonies if extant behoved to be seen again Ianuary 6. 1665. contra Edmonstoun of Carden Probation of a Defense was admitted partly by Oath what was the Cause of the Bond and partly by Witnesses that the condition thereof was contraveened Iune 15. 1665. Aikman contra Probation of the Delivery of a great bargain of Victual was not inferred from the Declaration of a person intrusted by the Debitor to receive it seing there was a time limited to obtain his Declaration after which his condition and trustinesse might change and could not perpetually oblige the Intruster Iuly 18. 1667. Executors of the Earl of Dirletoun contra Duke of Hamiltoun Earl of Crawfoord and others Probation was found to be according to the most pregnant Testimonies though others Witnessed a greater quantity this was in a matter old and in the estimation of â—osse November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Probation by one Witness and the Oath of the Pursuer in supplement in favours of a party who had been absent â—ut of the Countrey in the Kings Service pursuing for his share of a Ship and Goods against the remnant Owners medled with by them in Anno 1638. was sustained by the Admiral but Reduced by the Lords and the Pursuer ordained to adduce farther probation February 12. 1668. Captain Strachan contra Morison PROCESSES being Dispute to the full in presentâ—a The Lords by Act of Sederunt ordained the Clerks not to give up the same or any Process Dispute at full though there were no Interlocutor thereon But ordained it to be keeped till the Dispute were advised and Interlocutor pronunced Iune 6. 1665. Town of Edinburgh contra Thomson PROMISE to relieve a Cautioner who relieved the promisers Goods of poinding was found not probable by Witnesses though within an hundred pounds where the promiser was dead Iuly 3. 1668. Donâ—ldson contra Harrower A Promise by a Wife after her Husbands death never to quarrel a Tack of Liferent Lands which was in Writ for several years was found to exclude her and not to be as a verbal Tack valide only for a year but as pactum de non repugnando Ianuary 8. 1670. Scot contra Murray A PRO-TVTOR being an Overseer intrometting with the Pupils Bondâ— was found only lyable for the whole Bonds received by him though he uplifted the annualrent of a part of them only and for the annualrent thereof but not for any other means or Estate of the Defunct because there was no antecedent Law or Rule to oblige him but an Act to Sederunt was ordained to be made and published that all persons â—edling so in the future should be lyable both for intromission and omission as Tutors Iune 10. 1665. Swinâ—oun contra A PRYZE Ship was found not justly taken belonging to a Prince holding of the Kings Enemies unless he contribuâ—e to the War Ianuary 4. 1667. Harison contra Laird of Ludâ—uhurn A Prize Ship was liberate belonging to Neuters not the Kings Enemies nor Alies albeit carrying Counterband-Goods unless it were proven that the War was known at the place they â—oâ—sed from when they loused and that Acts of Hostility and declaring Prizes in Neighbouring places was not sufficient without publication of the War or knowledge thereof Iuly 23. 1667. Iurgan contra Captain Logan A â—rize Ship was found justly adjudged as carrying Counterband-Goods albeit a Swedish Shâ—p and by the Swedish Treaty such Counterband-Goods were allowed to the Sweds which was only understood they being the gâ—owth of their own Countrey Iuly 27 and 31. 1667. and November 6. 1667. Packman contra Captain Allan A Prize being taken pursued by two Privateers was â—ound equally to be divided betwixt both and not according to the proportion of their Guns seing the least and lightest of the Frigots did Seaze when the other was at a considerable distance and his concoâ—rse and conâ—ortship though made without consent or special Commission from the Owners being both in precinctâ— belli and profitable for the security of either party February 7. 1668. Cuningskie contra Captain Mastertoun Prize Ships being Questioned as having in them the product of Coâ—nterband-Goods carried in to the Kings Enemies in the same Voyage from which the Ship was returning was found not sufficient by the Tenor of the Admiral of Scotlands Commission bearing Warrant to seaze if the product of Counterband-Goods in that Voyage were found but by the Law and Custome of Nations and therefore the Lords granted Commission to â—ry the Custome of Holland France England and Spain February 21. 1668. Packman contra Allan A Prize being taken upon probable grounds and adjudged by the Admiral the Kings tenth part and Admirals fifteenth part being payed and the Goods sold the Decreet of Adjudication being Reduced the privateer was found lyable but for the value that the Goods might have given by rouping if they had been preserved and sold when and where they were adjudged February 24. 1668. Captain Mastertoun
followed the Disposition is void as being causa data causanon secuta 2dly Both the Disposition and Provision in the Contract that failing Heirs of the Marriage the 1000. pound should return to Iohn VVatson were obtained by Fraud and Circumvention being granted to a Curator ante reddiâ—as rationes by a Person who lately was his Minor and who was of a weak capacity Stupide and halfe Deaf and upon such unequal Terms her Means being worth 3000. pounds as appears by a Decreet obtained at her Instance and all she got being but 1000. pounds to return to Watson in case there were no Children and nothing secured on the Husbands part The Defender answered to the first that albeit the Disposition was of the same date with the Contract of Marriage it did not conclude that it was in Contemplation of the Marriage and might be and truly was an absolute Bargain As to the Reason of Circumvention it is not Relevant although the Terms had been as unequal as they are alleadged for the said Margaret Trench might freely Dispose of her own at her pleasure and leave it to Iohn VVatson who was her Mothers Brother if she had no Children especially seing David Trinch the nearest on the Fathers side is but her Goodsires Brothers Oy and never took notice of her whereas Iohn Watson Alimented her from her Infancy and obtained Decreets for her Means and never received a Groat thereof neither was there any inequality betwixt the 1000. pound and her means for which albeit there be a Decreet in absence of a greater sum yet there are unquestionable Defalcations which being Deduced with her Aliment there will not be 1000. pounds free The Lords conceiving the Matter to be very unwarrantable on the Curators part in taking this Disposition and Substitution before his Accompts with his Minor were given up did reduce both the Disposition and Substitution not only as done in Contemplation of Marriage but as being presumed fraudulent and unwarrantable Mr. Iohn Hay contra the Town of Peebles February 19. 1669. MR. Iohn Hay Insisting in his Declarator that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled wherein he stands Infeft in Property It was alleadged for the Town of Peebles that they do not acknowledge his Right of Property but they alleadge that they are Infeft by King Iames the second in their Burgage Lands with the Commonty of Priest-shiels and likewise by King Iames the fourth and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh he Perambulate their Commonty and hath set down Meithes and Marches thereof which are exprest in their Decreet of Perambulation within which their Meithes lie and that in Anno 1621. they have a Charter from King Iames the sixth of their Burgage and Commonty of Priest-shiels comprehending expresly thir Hills by vertue whereof they have been in peaceable Possession thereof as their proper Commonty by Pasturage Feuel Fail and Divot and by debarting all others therefrom The Pursuer answered that their Charters was but periculo petentis the King having formerly granted the Right of thir Lands to his Authors and the Decreet of Perambulation by the Sheriff of Edinburgh was a non suo judice the Lands not being within the Shire and for any Possession they had it was not constantly over all the year but only a while about Lambas of late and was still interrupted by him and his Authors and offered him to prove that they have been in immemorial Possession by Teiling Sowing and all other Deeds of Property and that thir Hills cannot be part of their Commonty there being other Heretors Lands interjected between the same and the Commonty of Priest-shiels so that the Pursuer ought to be preferred being in libello and far more Pregnant and specially alleadging Acts of Property by Tillage and the Defenders having Declarator depending of their Commonty and alleadged a Practique at the Instance of Sir George Kinnaird where he alleadging upon Property more pregnantly was preferred to an other in Probation alleadging Pasturage The Lords preferred neither Party to Probation but before answer Ordained a Perambulation to be and Witnesses adduced hinc inde anent the Situation of the Bounds and either Parties Possession and Interruption Lord Elphingstoun contra Lady Quarrel Eodem die THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun this Qâ—ere came in from the Auditors how the small Articles of uncost should be proven It was alleadged for Quarrel that such Articles could be proven no other way but by his Oath seing it was impossible either to use Witnesses or for them to remember such small particulars occurring every day especially seing it was known to all Coal-masters that such particulars were ordinarly incident It was answered for the Lord Elphingstoun though these Particulars were small yet they amounted in whole to 2000. merks and that the Tutors ought to have keeped the Coal-Grieves weekly Books wherein every particular was set down dayly as they were expeded which if they were produced and both the Tutors and Coal-Grieves Oathes were taken thereupon that they were truly so payed as they were recently set down they might be allowed but no such Book being produced the Tutor could not give a Compt thereof at random nor could his Oath in Astruction thereof be received because it were impossible for him to remember these small particulars without the Books It was answered for the Tutor that during the Dependence of this Process the Books were lostâ— which were made up by the Coal Grieves weekly but that he produced a Book made up of these Books and was willing to give his Oath that the first Books were lost and that thir Books albeit they be not direct Copies of the former Books yet that they were made up of the former and did agree in the matter with them and contained no more then they did The Lords refused to Sustain this manner of Probation but ordained Quarrel to condescend de casu ommissionis of the first Books and adduce such Proofs and Evidence thereof as he could and also to condescend who was the Writer of the latter Books that he might be Examined how he made up the one from of the other Kings Advocat contra Craw. Eodem die THe Kings Advocat pursues a Declarator of the Bastardy of one Craw. It was Alleadged for the Defenders that the Libel was not Relevant unless it had been condescended who was the Bastards Mother and offered to be proven that she was never married to his Father It was answered that not being married was a Negative and proved it self unless the Defenders condescended upon the Father and offered to prove married The Defender answered if that was Relevantâ— the most of all Scotland might be declared Bastards it being impossible after a considerable time to instruct the Solemnizing of a Marriage but Law and Custom doth require that at least it must be