Donator to a Forefaulture has Action for Exhibition and delivery of the Evidents The Vassal of a Subject having granted a subaltern Right to be holden base and the same not being confirmed by the mediate Superior Quaeritur Whether the Subvassals Right foresaid will fall under the Forefaulture of his immediat Superior being Forefaulted Answer It is thought that it will fall under the Forefaulture in respect that if the person Forefaulted had committed a Crime against his Immediate Superior whereupon the Lands would have recognosced or Forefaulted to him The Subvassal his Property would have fallen under the Forefaulture and there is eadem if not major Ratio in the case of Treason The King being Superior Paramount and the Crime against him being also a Crime against the mediate Superior there being no greater wrong than to be a Traitor to the Superiour Caldwell and Glanderstoun Quaeritur Quid Juris If the mediate Superiour had confirmed the Subvassals Right Quid Juris in the case of Forefalture for Treason And if there be a difference in the case of Forefaulture in Parliament and before the Justices Lands being Comprysed and a signature being past upon the Comprysing but no Infeftment being taken thereupon Quaeritur If the Debitor commit Treason in the interim whether the same will fall under Forefaulture Answer It is thought that it will not seing the Debitor was fully denuded there being no vestige of Right in his person seing he is divested by the Comprysing as if he had resigned and the Superiour had accepted the Resignation Quaeritur Quid Juris If there were only a Comprysing without a Signature And the Question may be more general Viz. If in all cases the Heretor be so denuded that he cannot prejudge the Compryser by any Deed whereupon Recognition or other Forefaulture may follow in favours of the Superiour otherways a Malicious Debitor may of purpose do such a Deed to prejudge his Creditor To consider if there be a difference betwixt a Disposition and Resignation accepted by the Superiour And a Comprysing whereupon nothing has followed Item If the presenting of a Signature on a Comprysing to the Exchequer be equivalent to a Resignation in the Superiours hands and accepting Item Whether a Charge to other Superiours to enter the Compryser be equivalent to a Resignation If after a Person is Forefaulted an Estate should fall to him as appearand Heir to any person he being yet on Life whether would the same pertain to the King or to the next Heir as if he were Deceased Seing he is nullus being Forefaulted and is not in a Capacity to be Appearand Heir If a Forfaulted person have Children that are ante nati Whether or not will they be prejudged by their Fathers Forfaulture as to any Capacity or Estate belonging to him Whether will they succeed to their Grandfather or any relation upon the Fathers side Seing their Blood is corrupted and they cannot represent their Father being nullus as said is A person having Married an Heretrix and being thereafter Forfaulted Quaeritur If the Blood of the Children be so tainted and corrupted That they cannot succeed to their Mother 2do If the Mother should not dispone in her oun Lifetime Whether her Estate will fall to the King by the incapacity of the Children being her appeirand Heirs An Heretrix being Wife to a forfaulted person If al 's long as he liveth the King will have right to the Mails and Duties Jure Mariti 2do If she may dispose of her Estate without his Consent seing he is nullus in Law And yet is her Husband the Marriage not being dissolved with the Forefaulture A Father having Disponed his Estate to his Son with Reversion and power either to Redeem or Dispone Quaeritur If the personal faculty may notwithstanding be comprysed during the Fathers Life and may be used even after the Death of the Father There is the same Question as to Forefaulture A Woman being Heretrix of Lands in Scotland and the same being TailÈied to the Heirs of her Body whilk FailÈieing to certain other Heirs with the ordinary Clauses irritant that she and they should not have power to prejudge the TailÈie Quaeritur If her Husband being Forefaulted the Blood be so corrupted that her Children cannot succeed and if their Interest of Succession will fall to the King If a Tack set for an Onerous Cause and for payment of Debt will prejudge the Donator to the Forefaulture The Creditor having an Action of Reduction competent to him for Reduceing an Infeftment as being in defraud of him if thereafter the Debitor should be Forefaulted and the Creditor reduce the said Right what way shall he be Infeft seing he cannot Compryse or Adjudge the Debitor being Forefaulted There being a Minute of Contract anent the selling of Lands and the Buyer being thereafter Forefaulted Quaeritur If the King or his Donators will have Right to the said Minute in the same manner as the Buyer or if the Seller can raise a Declarator to be free of the Minute Seing albeit where there is a clear Right and Interest belonging to a person Forefaulted the same will pertain to the King yet when a Bargain is only in fieri and there are diverse obligements upon the part of the Forefaulted person the Seller ought not to be in worse case and in place of a Subject have so powerful an Adversary The Earl of Tarras and the Heirs of Walter Riddel The Laird of Cesnock having acquired from Castlemaines the Barony of Castlemaines but not being Infeft but base before the Forefaulture Quaeritur If by his Forfaulture these who had Rights holden of Castlemaines not confirmed by the King will be in any hazard Answer It Is thought not Seing any Right Cesnock had to the saids Lands was not as the Kings Vassal In which case the subaltern Rights would have fallen and Castlemaines remaining the Kings Vassal Cesnock had only the Right of property holden of Castlemaines And as to Castlemaines Right holden of the King Cesnock had only Jus ad rem by the Contract or Disposition so that thereby the King by the Forefaulture may come to Castlemaines Right and force him to denude himself of the same but it cannot be said that the said Estate came in the Kings hand by the Forefaulture of a Vassal Sempronia having Right to certain Lands which are parcels of a Barony Feued to her Authors by the Earles of Argyle who held the same Feu of the Arch-Bishops of St. Andrews who did confirm the subaltern Rights granted by the saids Earles Quaeritur Whether the saids Lands belonging to the said Sempronia do fall under the Forefaulture of the Earl of Argyle notwithstanding the confirmation granted by the Bishops In respect the saids Rights are not confirmed by the King In Answer to the said Querie It is thought that the saids Lands do not fall under the Earles Forefaulture for these Reasons 1mo The Earle of Argyle did Forefault only
in favorem commercii Goods belonging to Rebels may either be Disponed and given by themselves in payment of their Debt or poinded or otherways affected before Declarator and Diligence done by the Donator to affect the same Grana crescentia WHat is the reason for the astriction of Grana crescentia Answer Feuers are in effect Coloni and perpetual Tacksmen And they ought not to be in better case than Tennants whose Grana crescentia were upon the matter thirled the Food and Expences of Labouring being deduced it is thought the Tennent will have no more than will entertain him Great Seal A Gift of the Estate belonging to Bastards or Forefaulted persons whereupon there was no Infeftment being granted under the Great Seal Quaeritur will it be valid Ratio Dubitandi The ordinary way of passing such Gifts is under the Privy Seal H. Heirs A Child being served Heir to his Mother and thereafter the Childs Father being served Heir to the Child Quaeritur if he can be said to be Heir of Line to his own Wife and ought to be discust before other Heirs A Woman being Married to a Bastard and having a Child Quaeritur as the Child will succeed to the Mother whether the Child having no other Heirs his Father being a Bastard so that he cannot have any Cognati upon the Fathers side will his Mother be Heir to him Ratio Dubitandi That by the Common Law the Mother does succeed and as the Child does succeed Ratione Cognationis and Relation to his Mother it seems that for the same reason she should succeed to him the Relation being mutual Quaeritur If a Son of a former Marriage having Right to succeed by Substitution in the case where the Father provided Lands to the Son of a second Marriage and the Heirs of his Body Whilks FailÈieing to the Fathers other Heirs and Assigneys for implement of his Contract of Marriage There being no other Children of the second Marriage must he be Heir to his Father the substitution being as said is in favours of the Fathers Heirs Ratio Dubitandi That in many cases the word Heir to another person than the person De cujus successione agitur is to be understood haeres habitu vel potentiâ non actu As if upon considerations a Brother should pass by his Brother of purpose and FailÈieing his own Heirs should substitute the Heirs of his Brothers Body But in this case it would seem by the Obligement of the said Contract of Marriage and the said right he has intended that he should be represented himself FailÈieing the Heirs of his Marriage Vide the tenth and eleventh Questions in the Title Successor titulo Lucrativo Litera S. If that should be the Construction Quaeritur Quid Juris If the Son of the second Marriage should decease the Father living Seing the Son of a former Marriage cannot be served Heir to his Father Cogitandum Lands being entailed to diverse persons substitute and the Heirs of their Bodies whilk FailÈieing to the other Heirs of TailÈie successivé Quaeritur If one of the said Heirs of TailÈie be Forefaulted before the Death of the person in Fee leaving descendents of his own Body whether will the next Heir of TailÈie succeed Ratio Dubitandi Because the next Heir who would succeed FailÈieing the Forefaulted person and the Heirs of his Body cannot be said to be proximus seing the Children of the Traitor are nearer And though they be nulli and mortui civiliter they are not naturaliter nulli So that they being incapable and the others not having jus sanguinis it may appear quod nullius est pertinet ad Regem It is thought that the nearest of Kin should exclude the Fisk Seing qui sunt nulli they are not to be considered as to any effect and especially in that which is odious and exclusive And it is hard that the Estate should be Forefaulted by the Crime of a person who had never Right to it Behaving as Heirs QVae Ratio That the owning a Title of Honour and sitting in Parliament doth not import Behaving as Heir and yet the owning and intrometting with a Sword or Armour or any thing else will import Gestionem Answer That Creditors being to be satisfied out of the Goods and Estate belonging to a Defunct Debitor If the Appearand Heir doth meddle with any part of the samen Eo ipso adit passive quia miscet se rei which should be Lyable to the Executors Execution But a Title of Honour is not such an Interest as could be any way Lyable to the Creditor and the Appearand Heir in owning the same non libat haereditatem Quaeritur If a Ratification by any Appearand Heir of a Right granted by the person he was to succeed to being yet on Life will import Gestionem Ratio Dubitandi That he could not be Heir nor Gerere during the Defuncts Lifetime And on the other part the ratification is granted because he is Appearand Heir and might question the Right And as one may be Lyable passive by accepting a Right in the Defuncts time whereby he is Successor titulo lucrativo so he may Behave by a Deed in the Defuncts time Heir of Conquest THere being three Brothers and the middle Brother having an Estate and deceasing after the decease of his Elder Brother who had diverse Sons and the Younger Brother being on Life Quaeritur Who will succeed to the middle Brother as Heir of Conquest Ratio Dubitandi 1mo The Younger Brother being Heir of Line and who would be Tutor to the Children of the middle Brother if he had any it may be doubted if there should be a representation in conquest the Heir of Conquest not being properly Heir 2do Conquest ascending gradatim whether would the Youngest or Eldest Son of the Elder Brother succeed as Heir of Conquest being both collateral to the Defunct Discussion of Heirs A Person having provided his Estate to his Daughter with power to Dispone and Redeem is obliged that if he should make use of that power in prejudice of his Daughter he and his Heirs Male and Successors in that Estate and Dignity should be obliged to pay a certain great Sum of Money at the first term after his Decease Quaeritur whether his other Heirs or Executors and not only the Heir Male will be Lyable to pay the said Sum at the least in subsidium The Heir Male being first discust Lauderdale and Lady Yester Quaeritur Quo ordine A Successor Titulo Lucrativo should be Discust Answer It is thought that he should be discust before the Heir of TailÈie being in effect a general Heir Unless Lands be Disponed to an Appearand Heir of TailÈie in which case he should be considered as an Heir of TailÈie When the order of Discussion is Renounced If the Heirs of TailÈie or Provision may have recourse for their relief against the Heir general who by Law is first Lyable to the Debts Albeit as to Creditors that order be
said Bond does terminate upon the Wife and her Heirs yet the Husband will be Fiar both as dignior and because the Right of the Sum will pertain to his Heirs in the first place and to the Wife and her Heirs only upon their failÈieur and as Heirs of Provision to them And Therefore In the present case the Money being lent by the Husband and being provided after his decease to his Son Robert and the Heirs of his Body whilk failÈiening the Heirs of the Marriage betwixt the Husband and the Wife and to the Wifes Heirs only in the last place It is thought That her Husband is Fiar and that the Wife and her Heirs will only have Right as Heirs of Provision unto him And if Robert should have had Children or if there had been other Children to the said Robert Elder by the said Katharine it were absurd that they should have had the Right of the said Sum which was lent by the Husband not as Heirs to him being their Grand-father or Father but as Heirs to the said Katharine being their Mother or Grand-mother or that the said Katherine surviving her Husband should have power as Fiar of disposeing the said Sum or to have given it to a second Husband in prejudice of the said Robert her Son or the Heirs of his Body and the Heirs if there had been any thereafter procreate of her Husband and her tho descended of both If it be found by the Lords that either the said Robert Selkirk Elder or his Son Robert was Fiar the said Katharine must be served Heir of Provision to the Fiar Substitution in Legacies A Legacy being left to a Person and failÈiening of him by decease to another Quaeritur What the Import of that Substitution is Answered It is thought That it is Substitutio Vulgaris and that the Effect of it is That if the Legatar die before the Testator so that the Right do not take effect in his Person it should belong to the Substitute But that is not fideicommissaria So that the Legatar dieing after the Testator it would belong to his Executors and not to the Substitutes Successio in Maternis A Grand Father upon the Mothers side having the time of his decease two Daughters and Children of a third Daughter Quaeritur If the two Daughters will only succeed and exclude the Children of the third Ratio Dubitandi That Representation is in order to the standing of Families and in the case of Primo-geniture whereas in Successione materna the Interest of Families is not considered seing the Grand Children by their Mother has not somuch as caput in Familia And for the same reason mobilia because they are not the Foundation of Families admitt no Representation Answer It is thought by our custom The Children of the deceist Daughter will succeed with their Materterae Et non potest reddi ratio omnium quae a majoribus constituta sunt If the Children of the deceast Daughter do succeed Quaeritur If the deceased Daughter has left Sons and Daughters whether the eldest Son of the said Children will succeed to their Grand Father Or if all the Children will be Heirs Portioners as to their Mothers part Seeing for the same reason that their Mother and Aunts are Heirs portioners viz. That they are finis Familiae a fortiori they who are not in Familia at all ought to be Heirs portioners Answer It is thought that the eldest Son of the deceast Daughter will succeed as Heir portioner with his Aunts and the Law doth favour not only Families as to preservation after they are constitute but likewise as to their Constitution And the eldest Son albeit he be not in Familia materna may constitute and be a head of a Family of his oun Successio in Stirpes SI duo Conjuges ita testentur post utriusque obitum utriusque haeredes ex aequo successuros haeredes fore tunc non in capita sed stirpes succedunt in duas aequales portiones haereditas dividenda est quia quilibet suos haeredes aeque dilexisse creditur illis ex aequo prospicere Thes Bes verbo Gleich 62. P. 323. 324. sect ult De Successione in Feudo amisso quo Jure censenda utrum Haereditatis an Conquestus QVaeritur De Feudo amisso reverso quo Jure censendum sit utrum Haereditatis an Conquestus de omnibus commissi speciebus competit sive ob Alienationem sive Disclamationem sive Purpresturam vel Baratriam aut qualemcunque Feloniam aliudve delictum feudum apertum dicatur Sed quia Recognitio frequentissimus apud nos feudi ex commisso vindicandi modus increbuit de ea praxi nostra maxime solenni textui accommodatiori quaestionem agitabimus Decisionem ad reliqua commissa indistincte porrigendam praefati Quaeritur igitur cum Superior feudum per Recognitionem sibi asseruit utrum feudum Recognitum post obitum ipsius ut conquestus ascendat An vero ut haereditas cum feudo dominanti descendat posito feudum dominans haereditarium esse Quaestio haec in se difficilis gravissimas consequentias secum trahens haud aequali tamen difficultate in omnibus Recognitionis speciebus laborat Quod ut patefiat sciendum duas apud nos invaluisse Recognitionis species ex causarum diversitate diversas unam ob defectum Vasalli alteram ob delictum Ex posteriori causa feudum ob delictum admissum Vasalli dicitur proprie committi Ex priori Vasalli prosapia quam in prima feudi concessione dominus ad feudi successionem asciverat extincta feudum dicitur finiri cum stemmate in quo resederat exspirare si enim ab initio contessum est alicui haeredibus masculis ex ipsius corpore progenitis vel descendentibus masculis Vasallo mortuo nec ullo ex descendentibus masculis superstite dominus feudum ab haeredibus talliae vel per foeminas descendentibus revocat hanc feudi revocatïonem Balfurius Recognitionem vocat ejus praxin prodidit in Tract de Recognitionibus datam 18. Decemb. 1506. Regio Advocato agente contra Joannem Margaritam Auchtrans haeredes alterum talliae alteram lineae Et hoc Genus Recognitionis etiam in feudis Francis locum habet feudo hac ex causa revocato etsi dubitari potest utrum in persona domini ád quem revertitur Haereditatis an Conquestus naturam induat certum est eodem jure quo feudum dominans censeri eandem naturam qualitatem sortiri respectu successionis omni alio respectu qui ex distractione divisione propriorum seu haereditatis conquestuum secundum nostram consuetudinem posset emergere Quin etiam hoc casu non solum Dominium directum dominium utile attrahit sed possessio civilis possessionem naturalem advocat adeo ut Dominus directus possessionem naturalem nactus non dicatur novam adeptus sed veterem continuare possessionem
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
Civili usucapi nequeunt Perez Instit. Tit. 10. Nihil enim operatur bona fides aut Titulus propter vitium nisi vitio purgato nempe re furtivâ reversâ in potestatem Domini Servus Fugitivus non usucapitur quia fugiendo sui furtum facere dicitur Si quis mala fide absente forte Domino vel negligente aut eo decedente sine successore fundum alienum possederit vendiderit Emptori bonae fidei non obstat usucapioni vitium quasi rei furtivae non enim fundi locive furtum committitur aut rerum immobilium facilis est interversio Res Fisci usucapi non possunt quia Juris publici sunt bona autem vacantia usucapiuntur quae haeredem non habent si antequam a Fisco occupentur ab alio possideantur quia nondum Fisco denunciata non sunt Fisci sed manent in Commercio Presentation upon Forefaulture QVaeritur If a Composition be due to the Superior for receiving a Vassal presented by the King upon a Forefaulture It is thought That it is not due seing he is obliged to receive him and the Lands belonging to the King by the Forefaulture he does a Favour to the Superior by presenting one in his place The King having presented a Vassal to the immediate Superior some years after the Forefaulture of the former Vassal Quaeritur Whether the Person presented will have Right to the Duties become due since the Forefaulture or if the same will belong to the Superior Cogitandum But it seems that the King having no Right to the Lands which he cannot hold of a Subject but having only Right to present a Vassal in the interim the Duties should belong to the Superior seing the Property belongs to no Person And the Superiority draws unto it the Right of Property and the Superior not having a Vassal ought to have the duties of the Lands Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority And it is not his fault that he wants a Vassal seing hardly he could force the King to present The Lord Tarras Process against Strangers IF a French Man or Hollander v. g. should retire out of France or Holland hither and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was Quaeritur If Process should be Sustained against him here And if it should according to what Law should he be Judged Seeing our Judges are not presumed nor obliged to know any other Law but our own and the civil Law Answer They ought to have Process according to the Law of the Place where they Contracted which may be known upon a Commission Seing Mobilia and Immobilia habent situm viz. illa fixum ista vagum Quid juris as to nomina Debitorum utrum sequuntur personam Debitoris an Creditoris So that a Debt due by a Scotsman to a Stranger should be considered as a Scots interest res Scotica and a Testament concerning the same should be confirmed in Scotland Quid Juris as to annualrents when the Laws of the Place where the Creditor lives and our Laws do vary Quid Juris When the Debitor being a Scotsman and having granted Bond in Scotland has retired elsewhere both as to the effect of confirmation and Annualrent whether Lawful or no Lawful And if the Annualrent should be ever considered with respect to the Place where the Debitor was Incola the time of the contracting Procuratories of Resignation IF Procuratories of Resignation granted by Magistrates Expire by the decease of the granters Promise to Dispone not in writ IF any Person or their Heirs may be pursued for implement of a promise to dispone Lands and Heretages it being referred to the Oath of the Person that made the Promise or of his Heir if he be deceased that such a Promise was made Answer That it is thought that as when upon a Treaty and Agreement Writs are drawn Parties may Resile before Writs be subscribed There is eadem if not major Ratio in Promises which cannot be perfected but in Write Et nihil actum creditur dum quid supersit agendum nisi accedit Juramentum Vide Emphyteosis and what the Lawyers say in such Cases where Write is necessary Protections IF Persons cited to appear before the Justice or Council or imprisoned by order of the Justice or Council may be taken or arrested upon Caption or otherwise for a Civil Debt though they have not Protections Provision in favours of Bairns IT was provided by Contract of Marriage that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee and to the Bairns of the Marriage in Fee Quaeritur If the Husband having acquired a considerable Estate may he advantage his Heir or any other of the Children and give a greater Proportion to them than the rest Or will the Conquest belong to all equally Ratio Dubitandi It were hard that the Father should not have power to divide his Estate amongst his Children and in Consideration of it to oblige them to be dutyful On the other part the provision being in favours of the Children which is nomen collectivum universale indefinitum aequipollet universali 2do If that Power were allowed to a Father it may be abused and intending to marry again he may deal with one of his Children and giving more nor his Proportion he may by transaction settle all the Conquest on him and take a great part of it back from him in prejudice of the other Children 3tio By that Provision there is a Legitime settled upon the Children and as the Father cannot prejudge them of that which is given them by Law but the Bairns-part must divide equally so he cannot prejudge them of that Bairns-part provided by Contract unless by the same the Father had that arbitrium and Power given to him as sometimes it is Provision in Bonds A Bond of provision being granted by a Brother to a Sister for a Sum to be payed to her at the next Term after the Bond without mention of Heirs or Assigneys but with a Provision that if she should decease unmarried it should return to the Granter and his Heirs Quaeritur If she having assigned the Bond the Assigneys will have Right albeit she deceased unmarried And what the import of the said provision is whether a Substitution or a Quality of the Fee and a fidei commissum that she should not assign but with the burden of it Ancrum younger contra Mangertoun Provisions in Charters IF Lands be disponed to be holden of the Disponer with a Provision that if the Vassal be year and day at the Horn his Liferent shall not pertain to the Disponer but now as then and then as now shall be given and belong to himself Quaeritur Quid Juris Ratio Dubitandi Dolus futurus non potest remitti and being pactum contra legem
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Provision as charged to Enter Heir respective It was alledeged for the Heir of the first marriage that he offered to renunce And for the Heir of Provision that the Heir of Line ought to be first discussed by adjudication and condescended upon movable Heirship which might be adjudged It was Answered for the Heir of Line that his Father having provided him had taken from him a Renunciation of all that could belong to him as Heir So that he could have no Right to the movable Heirship which in respect of his Renunciation would be considered as other movables and fall under Executrie It was Replyed for the Heir of provision that by the Renunciation the Heir of Line had renunced his kindness to the effect his Father might have power to dispose of the Heirship but his Father not having disposed thereof the Right returned to the Heir of Line again the Renounciation being in favours of him and his Heirs as in Renounciations of that nature as to Lands if the Father does not dispose of the same they will notwithstanding belong to the Heir Some of the Lords thought there should be a difference betwixt Lands and Movable Heirship In respect the Right of Lands whereof the Father died infeft cannot be Setled in the person of any other but the Heir who therefore ought to have Right notwithstanding of the Renunciation But the Movables which should fall under Heirship by the Renunciation of the Heir cease to be Heirship and may be confirmed as other Movables Others Thought that the Effect of such Renunciations should be the same as to Movables and Lands the Fathers intention being one and the same for both and therefore as the Right in the construction of the Law returneth to the Heir of the Father who doth not otherwise dispose of his Lands there is the same reason as to movable Heirships And as to the pretence foresaid it is of no weight seing if it were the Intention of the Father that by such Renunciations the Son should be denuded without Return though the Father should not dispose of his Lands the Son may be pursued and forced to denude himself that his Renunciation may be effectual in favours of the nearest of Kin. The Lords before answer ordained the Renunciation to be produced that they might consider the Tenor of it D. 108. Tacksmen of the Custumes contra Greenhead Eod. die THe Custums of the Borders being set in Subtack to Greenhead and others by the Tacksmen of the haill custumes of the Kingdom Greenhead is pursued as representing his Father one of the Subtacksmen for the dutie the year 1650. It was alledged That the Subtack was altogether unprofitable upon the occasion of the English Invasion so that Beasts and other Goods were not imported nor Exported that year as they had been in use formerly It was Answered that albeit in praediis Rusticis in case of Sterilitie Vastation and such other Calamities that cannot be avoided There may be abatement craved Remissio Canonis yet in this case the Subject being conductio rei periculosae Jactus Retis the Subtacksmen ought to have no abatement and are in the same case as Tacksmen of Salmond fishing who will be lyable for the duty albeit no profit arise to them The Lords Found That Subtacksmen should have abatement But the Question being most Quatenus and concerning the proportion because though the Subtacksmen had undoubtedly loss yet it was not Total there being some Commerce betwixt the Kingdoms for that year some Moneths It was Found in end upon hearing of Parties that the half of the Dutie should be abated Actores Lockhart Cuninghame Alteri Sinclair Mr Thomas Hay Clerk The Law is very clear ff Locati and the Doctors upon that Title not only in praediis but in conductione vectigalium and the like in case of an insuperable Calamity remittitur Canon merces but they are not so clear as to the Quatenus and proportion of the abatement when the detriment is not Total But it is just the abatement should be proportionable to the loss And accordingly The Lords decided D. 109. Justice Clerk contra Lambertoun 23. Nov. 1667. IN the case the Justice Clerk contra Lambertoun the probation anent the value and worth of the Woods pertaining to the Justice Clerk and cutt and intrometted with by Lambertoun being advised It was considered and represented by some of the Lords that had been Commissionated to examine the Witnesses adduced by both parties being allowed to have a joynt probation that the probation was dubious the Witnesses for the Pursuer declaring too highly and the Witnesses for the Defender too low as appeared And that the Subject of the Question not being de re which is the proper Object of Sense but de rei valore qui cadit sub Judicium Intellectum The Testimonies of the Witnesses are not de rei veritate but de credulitate opinione and therefore are not numeranda sed ponderanda according to the circumstances both of their oun quality and the quality of the Declaration whether they have declared verisimilia and whether animose and such like and whether they have given a probable reason of their knowledge That in this case the Witnesses that have deponed most to the advantage of the Pursuer are his own Tennants and one of them a Smith his Officer that they give the reason of their Knowledge that they dwelt in the bounds which is not sufficient unless they had been periti and Conversant about the matter of Woods and the Buying and the Selling and the valuing of the same That some Witnesses for the Defender had given their Judgment upon oath as strongly and pregnantly as they though they be not so many So that the probation at best is but dubious and in dubiis minimum sequendum at the least the Lords have a latitude to found their Judgment upon the Testimonies of both cum temperamento and without adhering percisely to either The Lords Found nevertheless by plurality That they should have respect to what had been proven by the most part And accordingly Decerned D. 110. Rankin contra Skelmorlie and Dunlop eod die IN a double poinding at the instance of the Lord Melvil there being a Competition betwixt two Creditors of Antonia Broun Daughter and Heir to Sir John Broun The Lords preferred Skelmorly the first Arrester Though Rankin had obtained a Decreet to make forthcoming and had compleated his Diligence and alledged that an Arrestment is but an inchoate Diligence and doth not hinder any other Creditor to compleat and do more exact diligence by poinding or by a Decreet to make forthcoming which in Debts and in nominibus are equivalent The reason of the Decision was that Skelmorly had not only Arrested but had intented a pursuite before the Lords to make forthcoming before Rankin But Processes before the Lords being more tedious and the Pursuer not Master of Calling Rankin had taken advantage by obtaining a Decreet
the said Disposition and yet these in whose favours the Disposition is made may choose Curators who will have the Administration of any other Estate belonging to them But if they be Puberes their persons are free and neither of the said Administrators can pretend to the keeping of them quia curator datur rebus D. 317. McKneish contra Bryce and her Husband eod die A Woman being pursued upon a Bond and having alledged that it it was Null because she was vestita viro The Reply that she promised payment after her Husbands decease tho the Sum was only 100 lib. Scots was Found not to be probable by Witnesses Glendoich Reporter D. 318. _____ contra _____ 16. Decem. 1675. THE Lords Found That a Merchant being in use to furnish diverse Years That a current accompt did not prescrive Tho some were of Opinion that the Act of Parliament bearing no distinction the Articles of Accompt ought to prescrive from their Respective Dates Seing otherways the Act of Parliament may be eluded both in the case of Compts and other cases which prescrive by the Act. Nevoy Reporter D. 319. Wilson contra Deans 17. December 1675. IT was Found That a Woman keeping a Shop and Traffiqueing as a Merchant with the knowledge of her Husband he is Lyable for Debts Contracted by her upon the account of her Traffique Actione institoria Forret Reporter D. 320. Thomson contra Mr. James Eleis eod die THE Lords Found In the case of a Right of Moveables granted by a Husband to his Wife with the burden of his Debts and a Provision that they shall be affected with the same That the property of the Goods is settled in the person of the Wife so that she may dispose of the same And these who acquire Right thereto are not concerned to enquire whether the price be converted to the use and satisfaction of the Creditors who will have a personal Action against the Wife So that she will in effect be in the case of an Executor and Trustee But if the Goods so affected be extant the Creditors of the Husband will be preferable to the Wifes proper Creditors her Right being fiduciary as said is and to the use foresaid Praesentia Vide supra 9. December 1675. The Creditors of James Mastertoun D. 321. _____ contra _____ 21. Decem. 1675. A Father having made a Disposition in favours of his Son reserving his own Liferent with power likewayes to dispose of what he had provided did appoint certain Persons as Curators and to have Administration of what he had provided dureing not only the Pupillarity but the Minority of his Son and nevertheless his Son having chosen Curators after his Pupillarity there was a Competition betwixt the said Curators and the Person appointed by the Father to Administrate The Lords Found That the Son as to his Person was not in potestate of either of the said competing Curators seing Curator non datur personae sed rebus and as to any other Estate belonging to the Minor any other way than by the Provision of his Father the same was to be governed by the advice of the Curator named and chosen by himself But the Lords demurred as to that Question viz. Whether the Father might affect the Right granted by himself with the Quality and Provision foresaid that the Person named by him should have administration of the Estate disponed by him And some were of the Opinion that there is a difference betwixt a Stranger and a Father in respect Strangers are not obliged to give and what they are pleased to give they may affect and qualifie their Right thereof sub modo and with what Provisions they think fit whereas a Father has a Duty lying upon him in nature to provide his Children and by the Law he may name Tutors to his Children but after Pupillarity he cannot put them under the power of Curators without their own consent and if this practice should be allowed there should hereafter be no election of Curators They did also consider that the Right granted by the Father was in effect donatio mortis causa seing the Father retained possession and a power to revock And it seemed that as the Father could not in Testament make Curators so he could not do the same by a Legacy or any such Donation mortis causa D. 322. Mr. of Rae contra Dumbyth 8 February 1676. IN a SpuilÈie at the Instance of the Master of Rae against Dumbyth It was Alledged The Pursute was prescrived because not intented within 3. Years so that it could not be sustained to give the Pursuer Juramentum in litem and violent Profits It was Replyed for the Pursuer That long within the 3. Years a pursute for Depredation had been intented before the Justice Which being of a Higher Nature and including Virtually and in consequence the conclusion of Restitution and Profits was a sufficient Interruption as to this pursute The Lords notwithstanding Found the pursute prescrived Newbyth Reporter Mr. Thomas Hay Clerk D. 323. Riccarton Drummond contra _____ eod die THE Lords Found That a special Service in an Annualrent doth give Right to Heretable Bonds and all other Heretable Estate whereupon Infeftment did not follow and includes a General Retour as Homo doth include Animal Newbyth Reporter Hamilton Clerk D. 324. _____ contra _____ eod die THE Lords Found That when Creditors did compear in Adjudications not being called they ought to be admitted with that quality that since the course of the Adjudger is stopt by their Compearance the Adjudger shall be in the same case as to any Adjudication at their instance as if both Adjudications were within year and day D. 325. Colledge of Aberdeen contra _____ eod die THE Colledge of Aberdeen having Right by Act of Parliament to the Vacant Stipends within the Bounds thereinmentioned pursues for a Vacant Stipend the Bishop of Ross compeared and alledged That the Kirk was his Mensal Kirk so that there could be no Vacant Stipend The Lords Found That the Colledge should have Right to any Stipend that belonged to the former Ministers either modified to them or of which they have been in Possession and that it was consistent that the Kirk should be Mensal and yet the Minister should have a Stipend and that the Pursuers should have Right thereto being Vacant Craigie Reporter D. 326. _____ contra _____ 9. February 1676. IN a Suspension a Reason of Compensation is lybelled viz. That the Charger was debitor to the Suspender upon account of a Fraught and it was offered to be proven by the Chargers Oath that he was so Debitor and by Witnesses what the Fraught extended to The Lords Found the Letters orderly proceeded and that Compensation was de liquido in liquidum and not de liquidando by Witnesses D. 327. _____ contra _____ eod die A Pursute was intented for a Sum of Money which the Defender was obliged by his Promise to pay in case he should be married having gotten
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
sese defendant adeoque Admiralitatis curia penes quam de iis causis jurisdictio est Lethae aut Edinburgi teneri debeat Nonnulli tamen a Thalassiarcha ut praetendunt delegati in regionibus procul dissitis in causis istis plerumque arduis gravissimis per se substitutos suos judicant a quorum sententia aliquando ad supremam quae Lethae habetur curiam provocatur Et ab istius curiae sententia appellationis rursus ad supremum Senatum Dominos Sessionis ut loquuntur appellatur Sic evenit ut tot Judiciorum curiarum meandros vix detur eluctari Nec id sine magno tum temporis tum sumptuum dispendio Posterity of Traitors IF by our Law the Posterity of Traitors be disabled ipso Jure both Antenati Post-nati as to any Estate pertaining to themselves which is not profectitious from the Father after Treason Ratio Dubitandi The Doom of Forefaulture beareth only forefaulture of Life Lands and Goods without mention of the posterity noxa caput sequitur and Lex Julia Majestatis is but the municipal Law of the Romans and is not authorised by any Act of Parliament or custom of ours To Consider the Act of Parliament K. Ja. 5. and the Act of Dis-habilitation of the Posterity of the Earl of Bothwel and Rehabilitation of John Stewart Transumpts IF Transumpts under the Clerk Registers hand do Satisfy in Improbations Ratio Dubitandi as in the case of the Question Decreets for proving the Tenor in hac Litera T. If Transumpts of Seasins out of the books of Touns and Burghs upon process to that effect as use is will satisfy the production Answer They will satisfy seeing the Prothocalls are Extant in the Touns Register Cogitandum as to the Transumpts of other seasins Trebellianica AN Executor nominate after Confirmation deceasing before the Testament be execute Quaeritur will he have Right to the Third and Trebellianica Trust WHether a bond in these terms viz. bearing an obligment to denude and declaring the Trust be equivalent to an Assignation Trustees in Infeftments A Right being granted to one his Heirs and Assigneys for the use and behoof of another person and his Heirs Quaeritur whether the casualities of Ward Marriage c. do fall by the decease and with respect to the person infeft or to the person to whose behoof the Right is granted May the person to whose use the same is granted compell the Vassal to denude in his favours without the Superiors consent Though the Superior may pretend that when the Right is to the behoof of an Incorporation that he has prejudice yet if it be to the behoof of a single person can he refuse to enter him if the Vassal be content to denude in his favours Ratio Dubitandi Though Vsuarius has an Interest yet he is not Vassal and the Superior cannot be urged to receive a new Vassal And on the other part the Right being in Trust and precarious to the behoof of the other ex natura inest that he may revock and urge the Vassal to denude and a Regress is implyed the Superior having granted the Right of the nature foresaid A Trustee committing Treason A Person having committed Treason and having in his person for the time a Right to a bond by Assignation but in trust to the use of an other and upon a back-bond declaring the Trust Quaeritur Whether or not the Sum due by bond will belong to the King and his Donator Ratio Dubitandi The Right of the Sum is in the person of the Traitor and by the Back-Bond he is only debitor and obliged to denude And he to whose use it is intrusted has not Jus in re but ad rem and a personal action against the Trustee whereunto the King is not lyable Tutors TVtela being munus publicum at least authoritate though not utilitate If by our custom a Tutor may be urged to accept the office Answer Negative and yet he may be urged Causative as v. g. If a legacy be left to a Tutor nominate he must either accept the office or want the legacy If a Tutor of Law after the year compear to oppose the giving of a Dative will he be heard to purge after Jus Devolutum As a Father has power to name Tutors is he so Tutor of Law that without any authority of the Judge or Service he may Administrate and grant Discharges A Tutor nominate by a Codicill ought he not to be confirmed and the Nomination ly in the Commissars Register If where there is more Tutors payment may be made securely to one Quid Juris as to Tutors if they may be charged and where there are Letters of Horning granted against them for their interest upon the debt of the pupil If their Escheat and Liferent will thereupon fall In what case Tutors may be charged or pupils themselves It is Thought That Cogitandum est Whether there be a difference betwixt the case of a Tutor when there is a Decreet against the pupil and against him for payment and he has not alledged nor made appear that he has nothing of the Pupils Estate in his hands officium non debet esse damnosum And when the Tutor is only charged for his interest Seing in the first case there is a decreet against him and in the other not Or if he ought to Suspend as being Debitor ex quasi contractu eo ipso that he is Tutor and is lyable either to the debt or ought to show that he cannot pay it Quaeritur If a Woman may be Tutor dative or Curator It is thought that though the Testators will be most to be followed in Testaments she cannot be Tutor dative because it is virile officium And a Woman though she will be Heir failÈiening Children penes quem emolumentum penes eundem onus yet she cannot be served Tutor of Law And the Law not trusting her she should not be Dative And though the Exchequer gives such Tutories it seemes to be an Errour and abuse If Breives for serving Tutors of Law should be direct to any others but the Sheriffs Or to other Judges where the Defunct had his Domicile and his Estate Seing Infants and Pupils have no Domicile and Services are oftentimes of purpose before the Baillies of the Canongate and in other places where neither the Pupils parents did dwell nor had they any interest or estate Diverse Tutors being named conjunctly Quaeritur if any of them decease will the Nomination be void Answer It is thought that Tutors and Executors have the Office singuli in solidum So that any of them deceasing the survivers continue Jure non decrescendi Montrose A Mid-brother having left Children Quaeritur Whether will his Elder Brother or Younger be Tutor to them Ratio Dubitandi That the younger Brother will not succeed penes quem onus penes eundem emolumentum Et e contra if the mid-Brothers Children should succeed to their
Father the younger Brother will be Heir to them though not to their Father Tutor and administrator of Law QVaeritur If Debitors may pay the Father as Tutor of Law sine inquisitione and without some authority of the Judge competent Seing there may be prejudice to the Pupil if the Father be prodigus or otherwise unfit Tutor Ratione Rei QVaeritur Whether a Person Disponing his Estate to a Pupil or Minor may appoint Tutors and Curators for administration of it during Minority Answer he may appoint Tutors or Curators to administrate But the Question remaineth whether he may appoint a Tutor not only rei suae but Personae and to any other Estate belonging to the Pupil Quaeritur The Father being deceased may the Grand-Father name Tutors to his Grand-Children There being no place to a Dative till after year and day Quaeritur If the nearest Agnat may oppose the giving a Dative Or if Jus be fully devolutum to the King as in other cases Juris devoluti Tutory FIve Persons being named Tutors whereof two to be sine quibus non viz. The Defuncts Relict and another and the Relict being Married and the other sine quo non deceasing Quaeritur Whether the Tutory falleth And if it be void whether the nearest of kin of age may be Tutor in Law Or if there should be place to a Tutor Dative And if in that case the surviving Tutors should be preferred to all others Ratio Dubitandi 1mo Though the defunct did express his respect to the sine quibus non so that during their being Tutors they should be sine quibus non he did also express his confidence in the other Tutors above all others by nameing them Tutors so that for the reason soresaid it may appear That they should continue Tutors at the least that for avoiding of question they should be preferred to be Datives 2do The next nearest of Kin should not be Tutors seing the Defunct did not trust them The case of my Lord Montrose his Father having named his Mother and the Earles of Perth and Haddington Drumelzior and Sir Willaim Bruce to be his Tutors V. Re-entering of Vassals WHen a Right holden of the Superior is reduced whether the Superior be obliged to Re-enter without a Composition Vectigalia Pedagia VEctigalia Pedagia sunt quasi stipendia Principum pro protectione reparatione itinerum pontium instituta Jus Fluviat Tom. 2. Consil 8. p. 140. n. 23. Licet per vadum quis transire possit solvitur tamen pedagium de fluminibus c. 24. Vinco Vincentem QVaeritur In what case the Brocard holdeth Si vinco vincentem vinco te Answer ubi est eadem Ratio as v.g. If there be three comprysings and the last compryser be first infeft and thereafter the first and the second in the last place But there is an Inhibition at the instance of the second before the Debt of the third Compryser The second will be preferable to the third who will be preferable to the first and yet the first will be preferred to the second As in the case of Adjudication and Infeftment thereupon the adjudger may exclude the Superiors Ward falling by the Debitor Quaeritur If he may exclude and be preferable to the Liferent having the first Infeftment Quia si vinco vincentem vinco te Answer he is not preferable to the Liferent and the Brocard doth only militate ubi est eadem Ratio vincendi and the adjudger vincit the Superior because he is infeft holden of him so that there can be no Ward but cannot upon that ground vincere the Liferenter because she is also infeft and has a prior Infeftment though base yet publick and which therefore doth exclude the adjudgers Infeftment being posterior though it would not exclude the Superior as to his casuality because base and not confirmed by him Ballencrief vide Debitor and Creditor Quaest 3. Litera D. U. Union THere being an Union in a Charter of Lands in diverse Shires so that one Seasin may be taken for all Quaeritur If the Heir may be served in the Shire where Seasin is to be taken as to all the Lands In respect the Lands in other Shires are fictione juris and by reason of the Union thought to be there Or if there must be a Service by a Commission or two Services in the several Shires If notwithstanding of the Union Seasin may be taken of both the Lands seing the Charter bears that una sasina erit sufficiens and not that it shall be necessary And if the Seasin may be quarrelled as not being at the places where Seasin is to be taken Item if the Taking two Seasins upon the Retour will import a renunceing of the Union so that a seasin cannot be taken thereafter at the place of the Union upon Resignation or otherwise Vniversalia augmentum recipiunt TOtum est vel Vniversale vel Integrale Vniversale ut haereditas Dos c. augmentum Diminutionem recipit futurum includit Ita grege legato quae postea accedunt ad Legatarium pertinent Jus Fluviat p. 768 n. 12. sequent Quando Vniversitas delinquit UNiversitas dicitur delinquere quando secundum consuetudinem loci per praeconem vel sonum campanae fuerit convocata in Concilio generali sponte convenerit deliquerit Si Decuriones consenserint tantum non Vniversitas sed particulares deliquisse dicuntur quia aliud est Vniversitas aliud singuli in generali potestate Decurionibus data non includitur potest as delinquendi Fritschii Tom. 2. exercit 3. Juris publ n. 73. Licet ista solennitas contra civitatem sit probanda tamen haud requiritur in delictis tractum successivum habentibus v. g. si non punitd elinquentes quia ibi praesumitur ratificatio quae in paenalibus mandato quoque comparatur consensus ipsius satis facto declaratur ibid. n. 75. Quomodo puniatur Vniversitas vide ibid. n. 78. sequent Punitur aliquando Banno sumpto de authoribus supplicio ut paena ad paucos metus ad omnes perveniat ibid. n. 80. W. Wadsets Vide De Hypothecis WHAT way shall a Creditor be secured as to a Wadset or Money due thereupon Answer He may compryse the Wadset-Right and if he cannot compryse the term of payment of the Creditors Debt not being come he may arrest the Sum due upon the Wadset to be forthcoming in case of redemption vide Arrestment of Conditional Debt in litera A. If Another Creditor compryse the Wadset will he be preferred to the Arrester befor the Order though anterior Answer he will be preferred being in the Right the time of the Redemption And the Money being only due to these who have Right to the Land and must renounce and retrovendere The Wadsetter deceasing after an Order and the Money being consigned Quaeritur Whether will it belong to his Heir or Executor Ratio Dubitandi Money of it self is Moveable And
not Habile Witnesses And by the Custom except in casu puerperii to prove the Birth of Children to give the Husband the benefite of Courtesie and by the Canon Law Decretal De verborum significatione Cap. 10. And on the other part it is urged by the Civil Law they may be Witnesses except in Testaments and by the Canon Law they may be Witnesses in causa Matrimoniali and by our custom in Criminibus occultis domesticis and in atrocioribus as Murder Treason and Falsehood And in Answer It is urged that where the Civil Law is altered by the Canon that is to be followed and that Women cannot prove Marriage and ought not to prove the Dissolution and in causa Matrimonii Witnesses should be above all exception Cap. 1. de Consanguinitate And if any of the Canonists were of another Opinion it was because the effect of Divorce was separatio mensae Thori non vinculi and in Treason and such Crimes much is indulged ad vindictam publicam but not ad vindictam privatam when such pursuites are only for private interest And it is not presumed that the Kings Advocat will corrupt Witnesses and in whatever case either by the Canon Law or ours Women are admitted It is only ubi constat de corpore delicti which is not in Adultery where there is not a Child and in whatever case even when the publick is concerned VVomen are never admitted but to adminiculate And Quando concurrit unus testis habilis supplet inhabilitatem alterius And there being Fourty or Fifty Processes of Adultery within this Hundred Years VVomen VVitnesses were never received and they are not admitted in causa scandali before the Commissars to prove injuria verborum much less in Crimine Adulterii Obligements to employ Sums of Money for Provision of VVives IF a Person be obliged by Contract of Marriage to employ a Sum of Money to himself and his Wife the longest liver in Liferent and to his Heirs Quaeritur If the said obligement be not performed what course the Relict may take to affect thereupon his Estate having no Heirs Creditors being in competition of Diligence And if she may not pursue his Appearand Heir as lawfully charged making mention of the Obligement and that the Heir will not perform the same and that loco facti succedit interesse and therefore to hear and see him decerned to pay and make forthcoming to her the said Sum that it may be employed conform to the said Obligement and to hear and see it found and declared that the same Execution shall follow upon the Decreet by Adjudication or otherwayes as is competent to other Creditors If a Relict will be preferable to other Creditors A VVomans Jointure A Man getting a Tocher and giving a Joynture in order to his VVifes Aliment and she having a Joint Right with him If he become Bankrupt will it be altogether ineffectual dureing Life Ratio Dubitandi It is Alimentary and she is a most favourable Creditor and otherwayes it should be Societas Leonina VVoods WHen a Liferenter is Infeft cum Nemoribus Quaeritur Quid Juris VVhen the VVood falleth to be cut dureing the Liferent VVrack IF Ships or Barges belonging to this Kingdom do make Ship-wrack within the same Quaeritur VVhether the Representatives of the owners may claim the Goods and not the King Or any Infeft cum Wrack Ratio Dubitandi That by the Act of Parliament Ja. 6. Par. 9. Cap. 124. Ships belonging to these Nations where that Law has not place are to be in another case than the Ships belonging to the Nations where the Law anent Ship-wrack has place and it seems reasonable that the King 's own Subjects and their Ships should be in alse good case as the Ships of any Nation whatsoever and that their Ships and Goods should not be lost upon pretence of VVrack unlese there were a positive Law to that purpose and the foresaid Act implyes that it is Triste Lucrum and not to be owned but Lege Talionis Z. The case of the Admirality of Orknay and Zetland Represented in behalf of the King in Answer to the Duke of Lennox's Claime thereto BY a Charter under the Great Seal in anno 1603. His Majesties Grandfather did give and grant to Lodovick Duke of Lennox the Office of Admirality in these terms Totum integrum Officium Admiralitatis nostri Regni cum omnibus privilegiis honoribus Commoditatibus eidem spectantibus The said Charter is not only of the said Office But of the Dukedome of Lennox and of the Lands therinmentiond belonging to the same And as to the said Lands and Dukedome the said Charter is upon the Dukes Resignation the same having formerly pertained to him But as to the said Office of Admirality the same is not given upon the Dukes Resignation but is casten in in the Novodamus whereas the Clauses of Novo-damus do not usually contain as to the Subject Disponed more nor did formerly belong to the Resigner seing de novo dare renovare doth suppose a former and preexistent Right There are indeed Ratifications in Parliament of Lodovick Duke of Lennox his Right of the Office of the Admirality But it is to be considered that by ancient Laws and Acts of Parliament it is Statute that heretable Offices should not be given or Disponed in Fee or Heretage and if they should de facto be disponed they should be given with great deliberation and deliverance of the Parliament s appears by the Acts 43 and 44 King James 6th his 11th Parliament Ratifications do ordinarly pass in Parliament of course without voting the very last hour of the Parliament when it is to dissolve and how little weight should be laid upon the same it appears by the Ratification produced for his Grace the Duke of Lennox dated 23 of October 1612 which doth ratifie the Infeftment Granted to the said Lodovick Duke of Lennox of the Offices of Great Admiral of Scotland and of all the Isles and bounds thereof with the Offices of Lieutenendrie upon the seas and Collonellship and Justice General and Office of Judicatorie Criminal and Civil with all the Priviledges Dignities and Casualities of the same set down in the said Infeftment albeit no such Infeftment for any thing known is or can be produced and the foresaid Infeftment in the year 1603 Granted to the Duke of Lennox is only simple of the Office of Admiralitie Regni nostri without any mention of the Isles or of the Office of Lieutenendrie upon the Seas or Collonellship and Justice General and of the Office Judicatorie Criminal and Civil And the said Act of Parliament is blank as to the date of the Infeftment which is ratified whereas if there had been any such Infeftment of the Tenor and Extent foresaid it would have then been produced the tyme of the said ratification And if it had been then produced the ratification would have expressed the date of the same It Appears by certain
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls
that the same should be reserved by way of Action The Lords for avoiding the multiplying of Processes obliged them to propone the exception of Improbation peremptorie But the same being prior natura and competent to be proponed before any other in meritis causae And yet being now proponed peremptorie in form of Process being the last of Exceptions The Lords admitted the Defenders to propone their other Exceptions and reserved that to the last place D. 127. Eodem die THE Lords upon debate amongst themselves Thought that the Abbay being His Majesties House should not Exempt or protect any person against His Majesties Laws and the Execution of Letters of Caption and therefore Recommended to the Keeper of the Abbay to put him out and not to shelter him there D. 128. Forbes contra Innes 8. January 1668. IN the Case Forbes contra Innes and Dalgarno The Lords Found That a Wife having no Right for the time to Lands Disponed by her Husband and having at the desire of the Buyer consented and sold her Right if she thereafter acquire from another person a Right to the saids Lands is not by her consent concluded but may pursue and evict the Lands upon her Right Her consent operating only that upon any Right from her Husband or then in her person she cannot question the Right whereto she hath consented And the Brocara that Jus superveniens accrescit being to be understood of Jus superveniens Authori whereas a Consenter is not Author Lockheart alteri Wedderburn Thoirs D. 129. Laird of Glencorse contra his Brethren and Sisters 9. January 1668. ALexander Bothwel of Glencorse having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife with absolute warrandice And by the Contract the Tocher being payable to the Father he did notwithstanding deliver Bonds of Provision to his other Children which were of a date before the Contract but not delivered diverse years after his Sons Marriage The Eldest Son pursued a Reduction of the said Bonds in so far as they may affect his Estate or be the ground of a pursuit against him as Successor Titulo lucrativo post contractum debitum The Reasons of Reduction were that the Bonds were not delivered the time of the Right granted to the Son and that he could not thereafter do any Deed in his prejudice and consequently could not deliver the said Bonds the delivery and not the granting being that which doth animate and make the same effectual It was Answered That the Father being Tutor of Law to his Children he having â—he Bonds for their use is equivalent as if the Children had them or that they had been delivered to them And whatever may be as to a Singular Successor they ought to be effectual against his Eldest Son who is universal successor It was Answered That Contracts of Marriage being not only in favours of the Son but in the behalf of the Wife and Children and with the Friends are most solemn and favourable Transactions Et bona fides is in them exuberant so that upon no pretence no Deed ought to be done by any of the Contracters in fraudem And that the Father if he had intended to have burdened the said Lands should have burdened the Fee expresly with the same that Provisions granted by Parents to their Children before they be delivered may be revocked and that the Father by granting the Disposition in favours of his Son had revocked the Bonds in question in so far as they may trouble him The Lords in respect it was proven That the Bonds were not delivered till after the Contract Found they could not be effectual against the Son and Reduced Sinclair and Wallace alteri Wedderburn Lockheart D. 130. Earl of Kinghorn contra The Laird of Vdney 14 January 1668. THE Earl of Kinghorn did Wadset to the deceast Laird of Vdney the Barony of Balhaves and the Sum due upon the Wadset being payed to Vdney he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles and especially upon that as Successor Titulo Lucrativo in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent and to the Defender in Fee with power to the Father or his Assigney to redeem the same upon payment of three Pounds And to Set Wadset and dispone without his consent It was Alledged the Sons Right was prior to the said Letter and that the Father did not make use of the said power It was Replyed That the Wadset was prior to the Defenders Right yet this Right being qualified as said is the Father might have contracted Debts and granted obligements after the said Right and the Defender would be lyable to the same seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone might have been comprysed for his Debt contracted after the said Right There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo If it should be found that the Wadset was Anterior 2ly If the obligement shall be found to be after the Defenders Right whether he would be notwithstanding Successor Titulo lucrativo in respect of the quality and condition foresaid of the said Right The Lords repelled the alledgance and Found the Defender would be lyable as Sucessor the pursuer proving that the Wadset was Anterior As to the second question the Lords thought it not necessar to decide being of very great consequence and deserving hearing In praesentia seing it was notour that the Wadset was before the Defenders Right Yet we inclined for the most part to think that when such Rights are granted or Purchased by Parents to their appearand Heirs they should be lyable to all the Debts due and contracted thereafter at least secundum vires in quantum Lucrantur And beside the abovementioned reasons these may be urged 1. the Father having by such a reservation not only a reversion but in effect a Right of propertie In so far as he has power to Dispone and wadset as if he were Fiar if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo having gotten thereby an absolute and irredeemable Right which he had not before And therfore he not useing the power competent to him by the said Reservation being equivalent as if he had discharged the same ought to operate the same effect 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease seeing before that time it is in his power to Evacuat the same and therefore the time of the Fathers decease is to be considercd so as the
the Buyer may and ought to take notice of the same whereas Compensation is but quasi solutio and it has never effect until it be proponed That point was also in consideration with the Lords Whether Compensation can be proponed by any person but such as has Right to the Debt And as to this point there were different Opinions and some of the Lords were of the Judgement that any person having interest to defend against Comprysings and pursuites upon the same might alledge they were satisfied in manner foresaid But others were of the Opinion that no person can pretend to compence but he that could discharge the Debt whereupon he would compence and consequently must have Right to the same And in the case in question neither a confirmed Testament containing the Debt due to the Defunct nor any Right to the same was produced The Act of Parliament K. Ja. 6th Parl. 12. Cap. 141. Being so positive that Compensation is only de liquido in liquidum before the giving of Decreets and never after the giving thereof Some of the Lords were of Opinion that tho the Defender had Right to the Debt due to the Defunct Compensation could not be received But some of the Lords having desired that the advising of these points being so considerable should be delayed till to morrow they were not decided Thesaurer Depute Reporter Gibson Clerk D. 363. Lamingtoun contra Raploch eod die A Suspension being craved Upon that reason that the Charger had been Curator and ante redditas rationes could not charge him with any Debt It was Answered That the Complainer being to be Marryed he desired the Charger and some others to be his Curators to the effect they might authorize him to Contract and the Charger had never intrometted Some of the Lords were of Opinion That if it could be verified by the Complainers Oath that the Charger had no Intromission and that these that Intrometted were Responsal In which case by the Civil Law there is no actio tutelae but against these who intrometted the others who had not Intrometted being only Lyable in subsidium the said reason should not be sustained But it being pretended that by our custom all Tutors and Curators are Lyable whether they intromet or not without out distinction and that Pupils may take themselves to any of them Tho it was not made appear that the said point was ever debated or decided yet the Lords Ordained the Complainer to give in a Charge against the Curator and the Compt to be discust upon the Bill Glendoich Reporter D. 364. E. Dumfermling contra Callender June 1676. BY Minute of Contract betwixt the deceast Earl of Callender and Dam Margaret Hay Countess of Dumfermling he was obliged to Infeft the said Lady in the Lands and Barony of Livingstoun in Liferent and Conjunctfee and whatsover other Lands and Sums of Money should be conquest during the Marriage He is obliged likewayes to grant surety of the same to her in Liferent in the same manner as of the former Lands And in case of no Issue of Children the one half of the said Conquest to be disposed upon as the Lady shall think fit And the Earl of Dumfermling having intented a Pursute as Assigney by his Father who was Heir to the said Lady his Mother for implement of the said Minute for declaring what Lands Sums of Money and others were conquest by the said Earl dureing the foresaid Marriage and for Infefting the Pursuer in the half of the said Conquest It was Alledged That the said Obligement and Clause of the Minute as to the Conquest are conditional viz. In case of no Issue of Children and that the said condition did not exist viz. There being an Child procreate of the said Marriage The Lords upon Debate in praesentia and among themselves did Find that the said Condition did exist In swa far as tho there were Children of the Marriage yet there was no Children or Issue the time of the Dissolution of the Marriage by the Decease of the Lady Albeit It was urged That these Conditions si liberi non extiterint vel non sint procreati and that Condition si non sint liberi superstites were different in Law and in the conception and import of the same And in the first case si non sint liberi sine adjecto tempore decessus vel dissoluti Matrimonii deficit ipso momento that there is a Child And the Condition being in the Terms foresaid in case of no Issue both in Law and in Propriety of Speech cannot be otherwayes understood and Interprete And in Claris non est locus conjecturae aut interpretationi which is only where words are Homonymous or Ambiguous And where a Clause is of it self such as may be understood without addition to make any upon pretence of the intention of Parties is not interpretari sed addere intentio in mente retenta nihil operatur And that if there had been Children of the Marriage who had Lived to that Age that they had been Marryed and had had Children who had all died before the Dissolving of the Marriage It could not be said without absurdity that there had been no Issue And both in Law and by our custom when there is any Advantage given or provided by the Law or by Contract in favours of the Husband in case of Issue It is ever understood si liberi sint procreaâ—i tho they do not survive As in the case of a Courtesy of Scotland And that Conditions ought to be taken strictly and according to the Letter especially in this case the Provision foresaid that the Lady in case of no Issue should have either a Fee or the half of the Conquest or a Faculty to dispose of the same It was farder Alledged That the said Clause doth not import that the Lady should have the Fee or the half of the Conquest but only a personal Faculty and Power to dispose of the half of the Conquest which she had not used And nevertheless it was Found by plurality that the said Provision imported a Fee In respect the said Minute was a short paper drawn by my Lord Callender himself who was altogether ignorant of the stile and conception of Writes And if it had been extended as it was intended it could not otherwayes be extended but the Fee behooved to be provided to the Lady as the half of the Conquest And that the half of the Conquest should be disposed of by the Lady did import that she should have a Fee and Dominium the very nature and essence of Property consisting in potestate Disponendi Some of the Lords were of Opinion that the said Clause did import only a personal Faculty Upon these Considerations 1. That the Right of Dominium being the highest Right and Interest can be given it cannot be thought to be given but when the words are such as are not applicable to any other interest whereas the said words do quadrate alse
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour
and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage The Lords Found The said Provision copulative and that the Tocher should not return albeit the Father in Law had Heirs Male within the foresaid time Seing the other Member of the said condition did not exist In respect albeit his Daughter deceased within the said time yet she had a Child of the Marriage that survived Gosford Reporter Mr. John Hay Clerk D. 424. Jaffray contra Laird of Wamfray 12. Jan. 1677. A Sum due be a Bond bearing an Obligement to Infeft and Requisition was Found to be Moveable after Requisition and to fall under Escheat notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable but remains still Heretable quoad fiscum In respect Bonds of the nature foresaid became Moveable by Requisition even before the said Act of Parliament And the Fisk since by the foresaid Act of Parliament is not put in better case is not in worse Glendoich Reporter Mr. John Hay Clerk D. 425. Inter eosdem eod die IN the same case It was Found That an Instrument of Requisition was Null because it did not bear that the Procuratory was produced And an Instrument being produced extended under the Notars Hand and being quarrelled upon the Ground foresaid The Lords did not allow the Notar to give out an other Instrument bearing the Procuratory to be produced nor did admit probation by Witnesses that the Procuratory was produced Seing such Solemnities are not presumed and cannot be proven by Witnesses but by valide and formal Instruments And a Notar having given out an Instrument that is defective cannot thereafter give an other to supply the defect Otherways the question being betwixt the Creditors who had done lawful Diligence and a Donator it should be in the power of a Notar to prefer and gratify either party as he should be prevailed with either to give out or not to give another Instrument D. 426. Inglis contra Lawrie eod die SOme of the Lords were of the Opinion that a Husband may give validly during Marriage to his Wife a Provision or Jointure where there is no Contract of Marriage But that the Wife could not give to the Husband tho there were not a Contract of Marriage and that she might revock any such Donation which appears to be hard and unequal Actor Colt alteri Dalrymple Mr. Thomas Hay Clerk But this Point was not decided D. 427. Fordel contra Caribber 16. January 1677. IN a Reduction at the instance of the Laird of Fordel against Monteeth of Caribber of a Disposition granted by Monteeth of Randyfurd to Caribber upon that Reason That the said Disposition was not delivered but was lying by the Defunct in his Charter Chest and blank in the Name and Date and that the Defender intrometted with the same unwarrantably and filled up his Name The Lords Ordained certain Persons who were going to France to be examined before Debate reserving to themselves to consider what their Depositions should work Tho it may appear hard that a Write should be taken away by Witnesses yet the Reason being relevant and in Fact and resolving in dole and Fraud it may be proven by Witnesses Mr. John Hay Clerk D. 428. Stewart of Ardvorlich contra Riddoch eod die DAVID Riddoch by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne did dispone to the said Alexander his Estate and thereafter did dispone the same to his second Son David Riddoch for payment and with the burden of all his Debts who did thereafter dispone the same to Stewart of Ardvorlich for a just price The said Stewart of Ardvorlich pursued a Reduction of the Disposition contained in the said Alexander his Contract of Marriage upon that Reason That the said Contract of Marriage was not delivered to the said Alexander at the least there being but only one double subscribed the same was given back to David Riddoch the Father and was lying by him the time of his decease And it was evident that it was never intended that any other use should be made of the said Contract but only in order to get a Marriage to the said Alexander as being provided to the said Estate in swa far as the said Disposition in favours of the said Alexander was without the burden of the Disponers Debts which were very great and did not so much as reserve his Liferent Whereunto It was Answered That the Contract was a mutual Evident subscribed by both Parties and that Marriage had followed upon the same and therefore it could not be taken away upon the pretence of not delivery The Lords Found That tho the Contract had been beside the Father the time of his decease it was not to be considered as instrumentum penes debitorem being a mutual Evident But thereafter It was Replyed That the Pursuer offered to prove that not only the said Contract was lying by the Disponer the time of his decease but an Assignation blank of the said Contract which being in the Disponers Hands was in effect a retrocession or Discharge of the Disposition contained in the Contract Which Reply the Lords found Relevant In praesentia This Reply was Found also probable prout de jure D. 429. Cuningham contra Halyburton eod die THE Lords Found That a Tacksman of Lands within Burgh may be removed if he be behind in payment of his Duty unless he find Caution as to the future in the same manner as Tacksmen of Land in the Countrey Forret Reporter Gibson Clerk D. 430. _____ contra _____ eod die THE Lords Found That a Burgess of the Town tho he be not Incola if he trade may be stented for payment of his Majesties Taxation D. 431. Earl of Glencairn contra Brisbain eod die THE Lords Found In the Case abovementioned Glencairn contra Brisbaine That the true Value of the Lands should be proven to the effect it may be known whether the Price be adequate or not And albeit the Lands had not been laboured by Tennents being still in the Heretors hands the Value might and ought to be proven by the soweing and increase and the quantity of the Land and what Lands in that part of the like quantity and quality may be set for And it was not enough that now the Earl of Glencairn offered 2000 merks more in respect the Lands might have been improven or the said offer might be made upon Picque or Emulation Hatton Reporter Mr. Thomas Hay Clerk In this Case the Lords allowed a conjunct Probation D. 432. Caribber contra Fordel 17. January 1677. THIS Day again in the Case abovementioned Caribber contra Fordel The Lords did Find upon a Bill given in by Caribber That albeit Write cannot be taken away but by Write directly and that a Disposition could not be taken away but by a Renounciation or some other Writt where there is no question as to the Validity and Formality of the same
MenÈies contra Burnet P. 14. 28. contra Miln P. 21. Miltoun Lady contra Whiteford P. 64. Minister Moram contra Bairfoot P. 11. Mitchel contra Mitchel P. 30. Mitchel contra Litlejohn P. 174. Mitchelson contra Mitchelson P. 204. Monmouth Duke and Dutchess contra Scot. P. 40. Monmouth Duke contra Earl of Tweeddale P. 117. Monteith contra E. Callender and Gloret P. 22. Mr. Henry Morison P. 141. Moubray contra Arbuthnet P. 90. Mouswel La. contra the Creditors on the Estate P. 152. Mouswel its Creditors contra the Lady and her Children P. 205. Mure contra Law P. 73. contra Murehead and Scot P. 60. Murray contra Tutor of Stormont P. 71. Murray contra P. 217. N. NAirn contra Scrymgeor P. 170. Nairn contra Stewart P. 215. Neilson contra Arthur P. 67. Neilson contra P. 170. Nevoy contra L. Balmerinoch P. 196. Newburgh Earl contta Stewart P. 15. Nicolson contra Laird of Philorth P. 50. Nisbet contra Hamilton P. 157. O. OGilvie contra Buckie P. 164. Oliphant contra Drummond P. 7. Oliphant contra P. 112 143. Oxford Viscount contra Cockburn P. 210. P. PAllat contra Veatch P. 201. Paplay contra Magistrats of Edinburgh P. 61. Park contra Rysly P. 158. Parkman contra Allan P. 55 61. Paterson contra Johnston P. 187. Paterson contra McKenÈie P. 189. Paton contra Stirling of Ardoch P. 63 75 82. Patrick contra Anderson P. 220. Perths Sheriff contra P. 153. Petrie contra Richart P. 12. Pilton contra Creditors of the Lord Sinclar P. 87. Pitmedden contra Seatons P. 96. Pitrichie Lord contra Laird Geight P. 181. Pittarro contra E. Northesk P. 97. Pittarro contra Tennents of Redmyre P. 166. Pollock contra Pollock P. 45 57. Pringle contra Cranston P. 4. Pringle contra Pringle P. 221. Purves contra Blackwood P. 20. Purveyance contra Knight P. 220 R. RAe Master contra Dumbyth P. 156. 218. Ramsay contra Carstairs P. 69. Ramsay contra Zeaman P. 168. Rankin contra Skelmorly P. 47. Rattraw contra P. 125. Reid contra Tailzifer P. 20 Reid contra Lady Lundy P. 65 Reynolds contra Erskines P. 182 Rig contra Rig. P. 166. Rioch contra P. 49. Rutherford contra Weddel P. 193. S. SAndilands contra Earl of Hadington P. 69. Scott contra Murray P. 127 Scott contra Kennedy P. 155 Scott contra Toish P. 191 contra Scot P. 60 Scrimgeor contra Kingheny P. 111 Shaw contra P. 26. 58 contra Sheill P. 176 Sheill contra Parochiners P. 190 Simpson contra Adamson P. 59 Sinclar Hugh's Creditors contra Annandale P. 71 Sinclair contra Home P. 215 Spence contra Scot P. 184 Spencerfield Lady contra Hamilton P. 75 Steill contra Hay P. 9 Stenhouse Laird contra Heretors of Tweedmoor P. 168 Stewart contra Mcduff P. 89 Stewart contra Riddoch P. 138. 212 Stewart contra Hay P. 186 Stewart contra Whiteford P. 207 Strachan contra Morison P. 57 T. TAcksmen of the Customs contra Greenhead P. 45 Tailfer contra Sandilands P. 214 Tait contra Walker P. 201 contra Tait P. 219 Tarsappies Creditors contra Kilfaunes P. 70 Tennent Young c. contra Sandy P. 200 Thoirs contra Tolquhone P. 85. 96 Thomson contra Mckittrick P. 10 Thomson contra Stevenson P. 26. 30 Thomson and Halyburton contra Ogilvy and Watson P. 128 Thomson contra Eleis P. 155 Torwoodhead Lady contra Tennents P. 121 Traquair Lady contra Earl of Wintoun P. 60 Trotters contra Lundy P. 44 Trotter contra Trotter P. 56 Tulliallans Minister contra Colvil and Kincardine P. 108 Tutor to the Laird of Aitons Daughter Supplicant P. 135 U. URquhart contra Frazer P. 23 Urquhart contra Cheyne P. 24 V. VAâ—se contra Sandilands P. 147 151. Vanse his Petition P. 146. Veatch contra Duncan P. 3. Veatch contra Creditors of Ker and Pallat P. 118 123 145 201. Veatch contra Hamilton P. 154. W. WAllace contra Symson P. 179. Wallace contra Murray P. 198. Wamphray Laird Supplicant P. 153. Warden contra Berrie P. 147. Watt contra Halyburton P. 34. Watson of Dunykier contra his Vassals P. 36. Watson contra Law P. 37. Wauch contra Jamison P. 163. Weavers of Edinburgh contra Magistrats thereof P. 29. Wedderburn contra Scrymgeor P. 9 14. Weir contra E. Bramford P. 189. Weymes contra Bruce P. 131. Whitehead contra Straiton P. 43. Wilkie contra P. 13. Wilson contra Magistrates of Queensferry P. 51. Wilson contra Deans P. 155. Y. YOung contra Young P. 29. Z. ZInzian contra Kinloch P. 30 An Alphabetical INDEX FOR Finding the Principal Matters handled in my Lord DIRLETON 'S Collection of Decisions Where it was thought fit for better Orders sake to prefix to them Numerical Figures and the Letter d. Whiâ—h there and in the following INDEX denotes either Decision or Dispute A. ABBEY should not protect against Captions decision 127. ABIDING by a Writt d. 142. see d. 168. d. 262. d. 265. d. 286. d. 386. d. 403. Abideing by a Bond as truely assigned and delivered by the Cedent d. 11. Abideing by in Improbations d. 291. ABSOLUTE Warrandice of Kirk-lands extended to warrand from the designation of a Gleib Tho it was Alledged That ex natura rei and not ex defectu Juris the Gleib was evicted but not to extend to a Supervenient Law d. 93. ACTIO TVTELAE d. 314. ACT before Answer d. 183. ADJUDICATION d. 270. d. 305. d. 324. see d. 45. d. 107. Adjudication of the Earl of Bramfords Estate d. 387. ADVISEING of the Cause see d. 73 If an ADVOCATE upon a Bill summarly given in against him be obliged to deliver up v. g. Goods entrusted to him or if he be only obliged to Answer summarly in Complaints against him in Relation to his Office and Trust d. 290. Advocates who had withdrawn their Petition for Readmission d. 226. ADVOCATION d. 261. d. 228. d. 294. d. 396. Advocation of an Edict of Executry d. 433. Advocation upon a Competition of double Rights d. 279. All Advocations before they be pass'd to be Reported to the whole Lords d. 260. ALIENATIONS in prejudice of Creditors d. 287. ALIMENT d. 165. d. 177. d. 414. d. 455. Aliment and Fee d. 350. Aliment craved in the interim untill a Provision falls payable d. 2. ANN. see d. 194. d. 379. ANNUALRENT d. 408. see d. 45. d. 146. d. 154. d. 266. d. 407. An Annualrenter Comprysing for the principal Sum may pass from his Comprysing and recur to his Infefâ—ment of Annualrent d. 83. ANNUITY see d. 241. Annuity payable out of the first and readiest Rents found to be entirely due tho the Rents were exhausted with Debts d. 99. Annuity to a Wife out of Lands lyable to Publick Burdens d. 143. APPEARAND HEIR d. 119. see d. 63. d. 95. d. 270. d. 450. Appearand Heir to a Baron cannot have a Moveable Heirship not being actually Baro. d. 209. ARBITRIVM JVDICIS not allowed to alter a punishment determined by Law d. 20. ARRESTMENT see d. 201. d. 300. Arrestment being