therefore ordained them to Condescend Archbishop of Glasgow contra Commissar of Glasgow Feb. 14. 1666. THe Archbishop of Glasgow pursues a Declarator or to hear and see it found and Declared that Commissars ought to be persons qualified and able to judge according to Law and that if they be not they might be deprived by the Act 1609. empowering the Bishops then restored to appoint able and sufficient men Commissars in all time coming and by the Act of Restitution 1661. whereby the like power is granted excepting Commissars nominat by the King unless he be insufficient or malversant and subsumes that Mr. William Fleming is not sufficient nor qualified for that Place and also that by the injunctions given to Commissars mentioned in the Act 1609. there is no place for Deputs unless it were by special consent of the Bishops and craves that it may be declared that the said Mr. William may not Serve by a Depute The Pursuer insisted on the first member It was alleadged for the Defender that he had his Place both from the King and Bishop Fairfoul confirming the same with a Novo damus and therefore though he might have been questioned before the said Ratification and new Gift yet now he cannot be questioned upon insufficiency but only on Malversation whereof there is no point alleadged nor condescended on nor is his insufficiency qualified by any Act of inorderly Process or injustice committed by him now these five years and as Bishop Fairfoul who acknowledged him to be a fit and qualified Person by his Ratification could never quarrel him upon insufficiency neither can this Bishop 2ly The Defender has his Place with power of Deputation and therefore having given eight thousand merks to the former Bishop for his Ratification with power of Deputation he cannot be questioned on his sufficiency being able per se aut per deputatum and no Act alleadged of injustice It was answered by the Pursuer to the first Defense that albeit this same Bishop had admitted this Commissar upon hopes of his Qualifications yet if contrair to his expectation it appears he is not qualified for so eminent a Judicature He may justly quarrel him of insufficiency as well as a Minister whom he ordained 2ly Though the same Person might not yet his Successor in Office might and is not bound to acknowledge what his Predecessor did by mistake or otherwayes to the detriment of the Sea which were in his option without a Rule or requiring Qualifications as the naming of Commissars To the Second albeit Deputs were allowable as they are not by the Injunctions yet the principal Commissar who must Regulat and answer for them must also be qualified both by the Act 1609. and the exception 1661. which enervats both the Defenders Gifts The Lords found that Member of the Lybel on the Qualifications and sufficiency Relevant My Lord Ley contra Porteous Feb. 15. 1666. MY Lord Ley having Right by progress to the Reversion of an old Wodset uses an Order and pursues Declarator thereupon The Defender alleadged no Declarator because by the Reversion there is a Tack to be granted to begin after Redemption and to continue for so many years It was answered that Tack was null and invalide not only by Common law as an usurary Paction giving the Wodsetter more then his ordinary Annualrent but by a special Act of Parliament Ia. 2. Par. 1449. cap. 19. whereby such Tacks taken in Wodsets to endure long time after the Redemption for the half mail or near thereby shall not be keeped and as by the late Act of Parliament between Debitor and Creditor it is provided that where old Wodsets were granted before 1650. when annual was at ten for ilk hundreth the Wodsetter may upon offer of Caution for the annualrent take Possession unless the Wodsetter offered himself to be comptable for what exceeds his annualrent It was answered for the Defender that his Defense stands yet Relevant notwithstanding the answer for as to the old Act of Parliament it is in desuetude and it hath been the common custom to grant such Tacks in Reversions which have still been observed and were never quarrelled neither are they usurary seing the Tacksman has the hazard of the Fruits and all burdens so his Tack-Duty how small soever unless it were elusory can be no usurary paction more then taking Lands in a proper Wodset which pay more then the true annualrent which was never found usurary 2ly This Wodset is granted since that old Act whereby the benefit thereof is totally past from As to the new Act the Clause bears expresly that during the none Redemption or none Requisition the conditions therein shall take place which cannot be extended to a Tack to be granted after Redemption It was answered that the first Act bears not only a Regulation of Wodsets already then granted but to be granted bearing expresly who takes or has taken Lands in Wodsets c. and there is nothing in the Wodset to renunce the benefit thereof As for the custom Acts of Parliament are not derogat by custom of privat parties aâ—quiescing in their agreements But the custom of the Lords by current Decisions As to the last Act it ought to be drawn ad pares casus and the Lands are not effectually Redeemed till the Tack be ended The Lords found the last Act no ground for annulling such Tacks but found the first Act a good ground if it were subsumed according to it that the â—ands were set for half Mail or thereby Lyon of Muiresk contra Gordon and others Eodem die JOhn Lyon of Muiresk having obtained Decreet of Spuilzie of certain Goods against Gordon and others they suspend and alleadge the Act of Indemnity that they took these Goods being under the Command of the Marquess of Hunlly It was answered that the Charger was in friendship with the Marquels and on his side and so they cannot Cloath themselves with the Act of Indemnity as done upon hostility 2ly The Act Indemnifies only Deeds done by Command and Warrant of any pretended Authority but here no such Order is alleadged It was answered that Orders were not given in Writ and if none get the benefit of the Indemnity but these can shewâ— or prove Orders few or none will enjoy it nor need the Suspenders to Dispute whose side the Charger was on seing they acted by Order The Lords found that it was sufficient to alleadge that the Charger was the time of the Intromission actually in Arms and acted it with a Party being then in Arms but needed not prove their Order or the application of the Goods to publick use but found it Relevant if it were offered to be proven by the Suspenders Oath that they had no Warrant or Order or pro ut de jure that they applyed them to their own privat use not for any publick use Iames Borthwick contra Ianet Skeen Feb. 16. 1666. JAmes Borthwick having obtained Reduction of Ianet Skeens Liferent-right as a
Disposition ex capute inhibitionis against the Laird of Fairney of all Dispositions made by John Glasfoord to him after her Inhibition he produced a Disposition Holograph wanting Witnesses of a Date anterior It was alleadged that the Holograph writ could not prove its own Date contra tertium The Lords before answer ordained Fairney to adduce Witness and adminacles for astructing the Date he adduced foâ—â— the Town Clerk who deponed he dyted the Disposition and a Town Officer who saw it subscribed of the Date it bears and a third who deponed he saw it subscribed on a Mercat day at Coupar which as he remembred was in March or Apryl 1652. Whereas the Date bears the first of August 1652. But that Glasfoord when he wrot it layed it down upon the Table beside himself and saw it not delivered and it being alleadged that the first of August 1652. fell upon a Sunday The Lords considering that Infeftment was not taken upon the Disposition for three years and that there was no Witnesses deponed upon the delivery found the Witnesses adduced not to astruct the Date of the Disposition and therefore reduced the same Clappertoun contra Laird Tarsonce Eodem die CLappertoun raises a Declarator against Tarsonce for declaring an Appryzing at his Instance against the Pursuer to have been satisfied within the legal by payment of the sums by the Debitor or by Intromission with the Mails and Duties either within the seven years of the first legal or within the three years thereafter during which by the late Act of Parliament Appryzings not expired in Anno 1652. were declared Redeemable or by Sums received from such as bought from the Appryzer a part of the appryzed Lands It was alleadged absolvitor from that member of satisfaction by the intromission during these three last years because the Act of Parliament does not expresly prorogat the Reversion but declares the Lands Redeemable within three years but does express nothing to whom the Mails and Duties shall belong which cannot be imputed against the Appryzer to satisfie the Appryzing because he enjoyed them as his own the Apprizing by the Law then standing being expyred bona fide possessor facit fructus consumptos suos and therefore a subsequent Law cannot be drawn back to make him compt for that which he might have consumed the more lavishly thinking it his own It was answered that Appryzings were odious being the taking away the whole Right of Lands for a sum without proportion to the true value and therefore all Acts retrenching them ought to be favourably interpret especially where the Appryzer gets all his own and therefore the Act declaring them Redeemable must be understood in the same case as they were before and that was either by payment or intromission The Lords Repelled the Defense and sustained the Declarator both as to payment and intromission and as to the sum the Appryzer got for a part of the Land sold by him Irredeemably after the seven years legal was expyred And seing the Acquirer of that Right was called they found it also Redeemable from him upon payment of the pryce payed for it cum omni causa and he to be comptable for the Rents unless the Pursuer would ratifie his Right as an irredeemable Right in which case the price should be accounted as a part of the sums appryzed for Lord Rentoun contra Feuars of Coldinghame Eodem die THe Lord Rentoun insisting in the Declarator of his Right of the Office of Forrestry and of a Threave of Corn with the Fodder whereof mention is made Ianuary 17. The Defenders proponed a second Defense viz. That the Pursuer shewed no sufficient progress from David Ellen but only an Infeftment granted by Ianet Ellen Davids Daughter and so the Pursuers Goodsir upon Ianets own Resignation and albeit there was a Precept of clare constat produced by the Abbot in favours of Ianet yet no Seasine followed thereupon so that Davids Infeftment was not established in the Person of Ianet and consequently could not belong to this Pursuer and the Defenders having gotten their Fews immediatly after Davids Right free of this Burden the Right could not be declared till it were established in the Pursuers Person and if he should now infeft himself the Interruption on the Act of Prescription upon the Summons lybelling upon Davids Right and the progress produced from David would fall It was answered that the Abbot having granted the Infeftment to Ianet upon her own Resignation yet bearing to be expresly to her as heir to David It was equivalent to a Precept of clare constat which does not necessarly require the ordinar form but a Charter infeâ—ting such a Person as heir to such another who was before infeft would be as valide so that in this infeftment of Ianets all being materially included to establish Davids Right in her Person she being acknowledged heir to David albeit it be upon her own Resignation utile per inutile non vitiatur The Defenders further alleadged absolvitor because by several Acts of Parliament infeftments of Kirk-lands before the Reformation are required to be Confirmed by the Pope or the King thereafter Ita est this is Confirmed by neither before the Feuers Right And by another Act of Parliament it is declared that the first Confirmation with the last Feu shall be preferred Ita est the Defenders has the first Confirmation It was answered that no Law nor Act of Parliament required Confirmation of an Office neither was any Confirmation absolutely necessar before that Act of Parliament but the Kirk-men might always have Feued without diminution of the Rental of the Lands as they were the time of the feu but that Act was made in regard that at the time of Reformation the Kirk-men being out of hopes of preserving of Monasteries and Kirk-lands did Feu them to their nearest Friends and therefore the foresaid Act as being correctory of the common Law ought not to be extended to any thing but what is exprest in the Act which is only Feues of Kirk-lands and so would neither extend to an Office as a Baillirie Forrestrie c. nor yet to a Pension or Annualrent neither would it extend to Infeftments by Kirk-men Ward such as most of the Infeftments of this Abbacy and many others are And seing Confirmation was not requisit but the Feu it self was sufficient alone the last Act preferring the first Confirmation takes no place which can only be understood where Confirmations are necessar It was answered for the Defenders that albeit an Office requires no Confirmation where there is nothing given but the Office and Casualities thereof Yet where there is a burden upon Lands given therewith such as this Threave of Oats out of every Husband-land being far above the proportion of a suitable Fee for the Office there being above 111. Husband-lands in the Abbacie and some Forrester-lands following the Office besides other Casualities Confirmation is necessar or else the Abbots might have eluded the
when ever he could be found yet the Law of Nations hath for the freedom of Trade abridged it to the immediat return of the same Voyage because quarrels would be multiplied upon pretence of any former Voyage Parkman having raised Reduction of the Admirals Decreet insists on these grounds First That by the Kings proclamation Denuncing the War it is evident that the King gives only Command to seise upon Ships having in them Enemies Goods or Counterband Goods without any mention of seising them in their return which would destroy the freedom of all Trade for upon that pretence every Ship that were met with at Sea might be brought up and therefore the Kings Proclamation did justly and humanly Warrand the seisure of Ships only when the Enemies Goods or Counterband Goods is found Aboard in which case for most part the cause of seisure is sensible to the Eye wherewith there was also produced a Testificat from Judge Ienkins Judge of the Admirality Court of England by the Kings Warrand upon the Petition of the Kings Resident of Sweden wherein he having advised with the Kings Advocat general who dayly attended that Court declareth that none of them remembers that in this War any Neuter were made Pryze in their return with the product of Enemies Goods and that he knew no Law nor Custom for the same 2dly There was produced the Treaties betwixt the King and the Crown of Sweden bearing that the Swedes should be made Pryze carrying Enemies Goods or Counterband Goods si deprehendantur It was also answered to the Reasons of Adjudication that the Stile of a Commission not granted by the King immediatly but by the Admiral could be no ground of Adjudication of Friends and Allies who were not obliged to know the same or what was the Tenor of the Admiral of Scotlands Commissions but were only obliged to take notice of the Law and Custom of Nations and of the Kings Proclamations of War and as to the Admirals Commission and Decreet thereupon in Anno 1627. It could not evidence the Custom of Scotland being but a Decreet in absence and upon a Lybel bearing not only the carrying of Counterband before in that Voyage but having actually Aboard Enemies Goods the time of the seisure which Lybel is found relevant by the Admiral but it appears not that he would have found it relevant alone upon the product of Counterband much lesse that that was proven and in Decreets in absence the Lords themselves suffers Decreets to pass with far less consideration and ofttimes of course so that it were strange to fortifie the Admirals Decreets that are now quarrelled after full hearing upon an Decreet of the Admirals in absence It was answered for Captain Allan that the Pursuer could not enjoy the benefit of the Swedish Treaty because he had transgrest the Treaty and served the Kings Enemies and as to the Testificat of Judge Ienkins or Custom of England this being a distinct Kingdom is not Ruled by the Custom of England and Judge Ienkins Testificat was impetrat by the Pursuer and not upon any Commission or proposal made by the Lords and the case therein mentioned is only anent the seisures in the return with the product of Enemies Goods and says only that they do not remember that ever the Case was decided there but says not that the Courts of Admirality had found that upon any Plea or Dispute that Ships could not be taken unless they had Aboard Counterband or Enemies Goods The Lords having formerly in this Cause desired to know the Kings Pleasure whether by the Swedish Treaty which maketh far fewer things Counterband then what are such by the Law of Nations and by which Tar is not Counterband the Swedes might Loaden Tar in Norway not being their own Growth and carry it to the Kings Enemies The King returned answer negative in which the Lords acquiesced and as to the present Dispute The Lords did not find the grounds alleadged for the Privatâ—er relevant or sufficient to instruct the Custom of Scotland or the Rule of the War and had litle respect to Judge Ienkins Testimony and therefore were not clear to approve the Adjudication but before answer did declare that the Lords by their own Commission would inquire in the Custom of Nations concerning the return of Counterband or Enemies Goods both by Commissions direct to England and other places Captain Strachan contra Morison February 22. 1668. CAptain Srachan pursues the Heirs of Umquhile George Morison before the Admiral for a Ship and Goods mâ—dâ—ed with wrongously by George and others in Anno 1638. They raise Reduction on this Reason that there was no Probation but one Witness and Captain Strachans Oath taken in supplement The Lords having considered the Probation in relation to the Ship found it sufficiently proven that Captain Strachan was an Owner of an eight part of the Sâ—â—p but found that the value thereof was not proven and seing Morison and the other partners sold the Ship after they had long made use of her without Strachans consent they found that Strachans Oath in litem ought to be taken as to the value and would not put him to prove the same after so long time and for the profits thereof ordained him Annualrent since he was dispossest This question arose to the Lords whether there being three Partners beside Captain Strachan who all medled whether Morison should be lyable in solidum or only for his third part in which the Lords found the Ship being corpus indivisibile and all the Partners in a Society and that Captain Strachan being absent in the Kings Service from the time of their medling to the Kings return and the other Parties in the mean time becoming insolvent The Lords found George Morison lyable in solidum for the eight part of the Ship but as to the Wines and others that were in the Ship whereanent there was no co-partinery proven and but one Witness of George Morisons Intromission and Captain Srachans own Oath in supplement The Lords found the same not sufficient and yet allowed Captain Strachan in fortification of the Decreet to adduce further probation Gavin Cochran contra 〈…〉 Eodem die GAvin Cochran as Donator to the Recognition of certain Land holden Waird of my Lord Cochran pursues the Vassal as having Alienat the Major part and also the Subvassal to hear and see it found and declared that the Lands had Recognosced by the Alienation made by the Vassal so the Subvassal It was alleadged for the Subvassal that he was Minor and therefore During his Minority non tenetur placitari super haereditate paterna It was answered that that holds only in Disputing the Minors Rights but is not sufficient against the Obligation or the Delinquence of the Defunct 2dly The Party principally called in this Process is the Vassal who is Major and whose Fee falls to the Superior by his Alieanation and the Subvassals Right falls only in consequence so that no priviledge of
Maybol for the time to the Lord Ochiltrie which came by progress in the Person of Ballimore having then in his Person Barganies Tack so that Ballimores taking that Right acknowledges the Parsons Right and passes from his former Tack unless in his Right he had expresly reserved his former Tack so that neither Ballimore nor these Assigneys can now make use of Barganies Tack it being a certain Ground that the taking of a posterior Tack having a greater Tack Duty or a shorter Term evacuats a prior Tack in that same Person It was answered that the alleadgance is no wayes Relevant Ballimore not having immediatly taken a second Tack but only finding another Tack by progress in the Person of the Lord Binnie to remove that impediment and shun his trouble he purchased Right thereto but never brooked thereby The Lords found that the taking Right to another Tack did not infer a passing from the former Tack unless it were proven that the posterior Tack had a greater Duty or shorter durance and that Ballimore had paid the said greater Duty to Bonar or bruiked expresly by the later Tack June 29. 1669. CAptain having taken at Sea obtained him to be declared Pryze upon this ground that he carried Clapboard which is expresly mentioned as Counterband in the Commission of the Admiral of Scotland given to the Caper and was the same Stile with the Commission Recorded in the Books of Admirality given in the time of War in the year 1628. The Strangers raised Reduction of the Admirals Decreet on this Reason that Clapboard being a general Name comprehending many kinds of Boards that Clapboard could be only understood Counterband which had not a promiscuous use in Peace and War but was instrumentum bellicum carried by the Kings Allies to his Enemies to be Sold to them for assisting of the War which this Loading could not be because it consisted all of Knappel cutted all at three Foot and an half length the proper use whereof is for Barrelis and is no wayes instrumentum bellicum The Lords having given Commission to some of their number to visite the Knappel and to Examine Sea-wrights whereupon they did Examine a number whether this Timber in question was useful for War or Shipping and most Deponed that it was not and some Deponed that it might be made use of to be Pins or Tubs but that it was not ordinarly made use of for Shipping but common Oak which was far cheaper The Lords did also before answer ordain either Party to adduce such Testificats and Evidences as they could from the Admiralties of Neighbouring Nations what was the Custom of Nations whether upon such Timber as this the Ships of Neuters or Allies were made Prize The strangers produced several Testificats one from the Custom-House of Amsterdame bearing that such Timber was not accounted Counterband in Holland and one from the Spanish Admiralty at Ostend bearing that they knew not that by their Custom and the Custom of other Admiralties such Timber was Counterband one from a Deputy who served in the French Admiralty at Dunkirk declaring that in that Admiralty such Timber was not accounted Counterband one from the Kings Auctorney and another Lawer who served in the Court of Admiralty of England bearing that during the War none had been declared Prize upon that account The Privateer produced no Testificats but alleadged that there ought no respect to be had to the Testificats produced it being easie to impetrat such and there should a Commission been direct by the Lords to the several Chief Admiralties of the Neighbouring Nations to express what was their Custom in this Point Notwithstanding the Lords found the Ship Prize as carrying this Clapboard being contained in the Admirals Commission a great part of the most able of the Lords being of the contrary Judgement Earl of Argile contra His Vassals Iune 30. 1669. THe Earl of Argile being Donator to the Forefaulture of the late Marquess of Argile his Father Pursues an Improbation of the Vassals Rights and craved Certification The Vassals alleadged no Certification against their Rights because any Right the Earl had was qualified by the Kings Gift that he should only have Lands paying 15000. pounds and that the rest should be conveyed to the Creditors and the Creditors thereupon claiming the Property of the Vassals as falling within the Forefaulture His Majesty Wrot a Letter Declaring that it was not His meaning by the Gift that the Creditors should have any more Lands conveyed to them then the remainder of the Property belonging to the late Marquess over and above this Earls part and that the Superiority should entirely belong to the Earl and his Successors by which His Majesties Mind and Pleasure is evident that the Earl should only have the Superiority and not the Property of the Vassals 2dly The Vassals offered to produce what Rights they had flowing from the House of Argile but there could be no Certification as to what they had not in respect of the Troubles especially no Certification for want of Confirmation of the Vassals Rights by the King because several of the Vassals continued Loyal to His Majesty during all the Troubles and some of them losed their lives in His Service opposing the said late Marquess himself So that it can never be thought to be His Majesties purpose or pleasure so to restore this Earl the Marquess Heir appearand as thereby to Forefault the Vassals who adhered to His Majesty and who durst not in time of these Troubles have fought Confirmations His Majesties Exchequer being then in the manadgement of these who were in opposition to Him It was answered for the Pursuer to the first that neither by the Pursuers Gift from His Majesty nor by the foresaid Letter there is nothing granted to the Vassals in opposition to the Earls Right but in opposition to the Creditors that they should have no hand in the Vassals Estates Likeas His Majesty by His last Ratification and Charter under the Great Seal produced hath most distinctly and clearly exprest His meaning and pleasure that by the foresaid Gift or Letter His Majesty did only Exclude the Creditors from the Estates of the Vassals but thereby Declares that not only the Superiority and Casualities thereof should belong to the Earl but the Property of all these who had not sufficient Rights from the House of Argile and Confirmations from the King and that the Earl might Intent all Actions competent of Law for that effect It was answered for the Vassals that if their true condition and adherence to His Majesty had been understood His Majesty would not so have Declared and that post jus quaesitum to them by the Kings Gift and Letter no posterior Declaration impetrat from His Majesty should prejudge them at the least they humbly craved that the Lords according to their former Interlocutor would Represent the Case to His Majesty that His Pleasure might be known and that His Majesty might interpose with my Lord
the rest of his children or else to pay a Modification for his aliment albeit the Father was indigent seing the Son had no Means or Calling to aliment himself Ianuary 13. 1666. Dick contra Dick. A Father was sound to be lawful Administrator to his Son in his Family not only in his Pupillarity but Minority as curatorâ— honorarius not lyable to oâ—â—mission or exclusive to other Curators but deeds done without his consent were found null albeit his Son resided not in his Family but followed the Law living still on his Fathers charges and having no Calling or Patrimony to maintain himself neither was his Fathers Subscribing with him found a sufficient authorizing of him seing he subscribed with him as Cautioner for him December 7. 1666. Menzeis contra Fairholme A Father taking a Bond blank in the Creditors Name and filling up his Brothers Name therein and obtaining an Assignation from him to his daughter was not found as a Bond of Provision Revockable by the Father in respect the Bond was Registrate in the Brothers Name November 20. 1667. Executors of Trotter contra Trotter A Father was not found obliged for Annualrent of a Legacy uplifted by him belonging to his Son as being his Tutor of Law the Son being Alimented by the Father and in his Family December 15. 1668. Windrham contra Eleâ—s A Father granting Bond to a Bairn in satisfaction of her Portion Natural was found thereby to increass the Bairns part of the rest of the Bairns and not to apply that Bairns part to the Heir Executor or universal Legator as they who were obliged for the Bond of Provision comprehending the Bairns part February 17. 1671. Megil contra Viscount of Oxenfoord A FEW containing a clause irritant expreslyâ— to be null upon the Failzle was found not to be purged at the Bar where offer of payment was made in which it differs from a Feu not having that clause February 13. 1666. Laird of Wedderburn contra Wardlaw Feus of Ward-lands granted before the Act of Parliament 1666. against Feus was found valide albeit granted by these who held Ward of Subjects without consent of their Superiour Iune 24. 1668. Steuart of Torrence contra Feuers of Ernoch A Feu was found to be Renunceable by a Feuer to free him of the Feu-duty albeit it was constitute by a muâ—ual contract obliging the Feuer and his Heirs to pay the Feu-duty yearly seing by a Back-bond of the same date he was allowed to Renunce when he pleased which was found effectual to take away that personal obligement being extrinsick to the Feu though in the Feudal Contract against a singular Successor in the Feu February 1. 1669. Brown contra Sibbald A FEW-Dâ—VTY was found personally to affect a Liferenter for these years only whereof she lifted the Rent Iuly 19. 1665. Windrham contra the Lady Idingtoun FOREFAVLTVRE of a Paricide as having killed his own Mother being gifted by the King and Infeftment thereon was found to have no effect unless there had been a doom of Forefaulture pronunced by the Iustices but not upon the ordinary course against absents declaring parties Fugitives for not underlying the Law which can only reach their Moveables Iuly 30. 1662. Zeaman contra Oliphant Forefaulture having with it dishabilitation of the Forefault persons Children declaring them incapable of Lands or Estate in Scotland whereby the Sons Estate fell in the Kings hand and was disponed to a donatar who set Tacks and the Son being restored by Sentence of Parliament as an Infant not accessory to the Crime The Infeftment and Tack thereon were found to fall without calling the Persons interressed before the Parliament notwithstanding of the Act 1584. Prohibiting Restitutions by way of Reduction and declaring Rights granted medio tempore by the King to be valide which was not found to extend to dishabilitation of the Children but to the principal Forefalture February 24. 1665. Dowglas and Sinclar her Husband contra the Laird of Wedderburn Here both the dishabilitation and remission thereof proceeded without citation Forefalture and five years possession of the Forefalt person before the Forefalture makes a valide Right notwithstanding of the posterior Act of Parliament for registration of Seasines and Reversions c. Yet interruption within the five years was found to elide the same by Inhibition and granting a new Corroborative Right especially where citation was used immediatly before the five years albeit the corroborative Right was post commissum crimen Iuly 23. 1666. Earl of Southesk contra Marquess of Huntly Forefalture and five years possession was found not Relevant by exception or reply without a reâ—our by an Inquest Iune 13. 1666. Hume contra Hume Forefalture gives the King or his Donator five years Rent of any Land the Forefalt person was in possession off the time of the Sentence whether by Tack or not Ianuary 24. 1667. Inter eosdem In Forefalture a donatar was found excluded by Appryzing at the instance of the Creditors of the Forefalt person who had comprized before the committing of the Crime and had charged the Superiour after the crime but before the Process of Forefalture Iuly 6. 1667. Creditors of Hume of Kâ—llo contra Hume The Donatar of Forefalture pursuing Removing was found not to be excluded by an Inâ—eâ—tment on an Appryzing granted by the King being then immediate Superiour before the Gift which was not found equivalent to a Confirmation but past in Exchequer of course without notice December 9. 1668. Earl of Argile contra Stirling Forefalture was found to exclude a Creditor founding upon a clause in the disposition made to the Forefalt Person by his Father reserving a power to himself to affect and burden the Lands disponed by Wodset or Annualrent for such a sum though the Father had granted a Bond to the Pursuer declaring the sum to be a part of the Reservation seing there followed no Infeftment by Resignation or Confirmation by the King Iuly 12. 1671. Learmoâ—th contra Earl of Lauderdail Forefalture Vide Gift Hague contra Moscrop and Rutherfoord FRAVD of Creditors being insisted on to Reduce an additional Ioynture after the debt appryzed on the Liferenter offering access to the Appryzer for his Annualrent and to be totally excluded if it were not Redeemed within the Legal it was Sustained Relevant here the Husband was neither bankrupt nor insolvent but there was no ready execution because of the additional Ioynture February 10. 1669. Lady Greenhead contra Lord Lour Fraud of Creditors upon the Act of Parliament 1621. was not found Relevant by Reply without Reduction though of a disposition by a Father to a Son in a small matter Iune 19. 1663. Red contra Harper Fraud of Creditors was not inferred by a clause in a Contract providing a Ioynture to a Wife with condition of restricking her self to a part that the superplus might belong to the Bairns for their Aliment the whole Ioynture being only proportionable to the condition of the parties November 16. 1665.
ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâ—cie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâ—ymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâ—erewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ— And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ— and Councilers Right trusty and well-beloved Councilâ—rs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defâ—rence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and â—ear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
the general Registers of Hornings and Inhibitions and of the particular Registers thereof in the Shire of Edinburgh during the Englishes time and found that during the said time there were no Hornings Booked for the space of five years and three moneths or thereby and that no Inhibition were Booked for the space of three years and six moneths and that they had called the Persons who were intrusted in that time as Clerks to and Keepers of the saids Registers of Hornings and Inhibitions and where they were dead they called and heard their Representatives but that one of these who had the Keeping of the saids Registers from the 5. of Iune 1652. to the 8. of September 1654. Called Thomas Freeman being deceased there can be none found to represent him which being taken in consideration by the Lords they Ordain the Hornings and Inhibitions to be Booked for the saids years by such Persons as the Lord Register shall appoint and allows them for their pains three shillings four pennies for ilk Leaf of the Book Written in such manner as the Lord Register shall appoint And the Lords Ordain the same to be payed by the Persons who enjoyed and possest the said Offices and were oblieged to have Booked the same or their Representatives And where they have none to Represent them by the Person who succeeded next in the said Office and his Representatives And Ordain Letters of Horning to be direct upon six dayes to the effect foresaid Orders for payment of the Dues of the Signet where Suspensions are appointed to be discussed upon the Bill Ianuary 24. 1679. THE Lords considering that they do frequently grant Warrands to the Ordinary upon the Bills to Discuss the Reasons of Suspension upon the Bill especially where the Charger desires the same And seeing that Warrand or Deliverance hath the effect of a Suspension past the Signet the Party ingiver of the Bill of Suspension being thereby secured against any further Personal Execution untill the Reasons of Suspension be Discussed It is just and reasonable in this Case that the Dues payable for affixing the Signet should be satisfied as if the Suspension had been past and exped Therefore the saids Lords do Ordain that before the Suspenders Process be heard upon the Reasons of Suspension before the Ordinary upon the Bills in order to the Discussing thereof there be payed in to the Clerk of the Bills or his Servant in that Office the Dues payable for affixing the Signet to the Suspension for which they are to be comptable to the Keeper of the Signet under the Lord Secretary and to make payment thereof as he shall call for the same And appoint the Clerk of the Bills and his Servants to keep a Note of such Bills of Suspension whereof the Reasons are ordained to be be Discussed on the Bills to the effect foresaid ACT in Favours of Intrant Advocats February 7. 1679. THE Lords considering a Petition presented to them by Robert Nairn Son to Mr. Alexander Nairn of Greenyards mentioning That the Petitioner upon a Reference of the Lords to the Dean of Faculty and the Advocats Examinators for taking Tryal of his Qualifications in order to his Admission to the Office of an Advocat having undergone both the privat and publick Tryal and Examination and thereafter applyed to the Dean of Faculty to assign him the Subject of his publick Lesson before the Lords the same is refused until the Petitioner make payment to the Advocats Box of 500. merks Scots conform to a late Act of the Faculty made to that purpose And the Lords considering that the Office and Imployment of Advocats being a liberal profession albeit they will not allow any sums of money to be imposed upon young men at their Entry to the Office and Station of Advocats yet they recommend to them to Contribute Voluntarly for a Library to be erected for the use of the Colledge of Justice ACT anent Executors Creditors November 14. 1679. THE Lords considering that it is imcumbent to all Executors by vertue of their Office to execute the Testament of the Defunctâ— by recovering his Goods and payment of the Debts owing to him for the behove and interest of the Relict Children or nearest of Kin Creditors and Legatars of the Defunct Therefore the saids Lords do Declare that Executors decerned and Confirmed as Creditors to the Defunct are holden as lyable to do Diligence for recovery of the Defuncts Goods and the Debts due to him Confirmed in the Testament or â—iked sicklike as other Executors Dative are holden to do by the Law and practick of this Kingdom And to the effect that Creditors be not unnecessarly intangled in the Execution of Defuncts Debts beyond their own satisfaction The Lords Declare that Executors Creditors shall not be oblieged to make a total Confirmation but only of so much as they shall think fit that there may be place for an Executor ad ommissa for the rest who shall be lyable to all Parties having Interest in the same way as principal Executors It is also Declared that Executors Creditors shall have license to pursue if they will make Faith that they are doubtful of the Validity Existence or Probation of the Debts of the Defunct for which they desire license the same being returned to the Commissars within such competent time as they shall appoint and upon Caution to Confirm as hath been granted in the Case of Licenses formerly ACT anent the Registration of Hornings November 19. 1679. FOrasmuch as all Letters of Horning are to be Registrate either in the Registers of the Shire where the Denounced Person dwells or in the general Register of Hornings keeped at Edinburgh and the Sheriffs Clerks and Keepers of these Registers in the Shires are by special Act of Parliament appointed to bring in those Registers to be marked by the Clerk of Register and when they mark the Registration of any Horning upon the Letters they should also insert therein the number of the leaves of the Register wherein the same is Registrate Which Order is renewed by Act of Regulation in Anno 1672. And the due observance hereof being of great Importance for the Benefite and Security of the Leidges Therefore the Lords do accordingly Ordain all Sheriff Clerks to bring in their Registers of Horning to be marked by the Clerk of Register and that in every Horning to be Registrate by them they insert at the marking thereof the particular leaf of the Register wherein they are Registrate and that the Sheriffâ— Clerk take in no Hornings to be Registrate in their Books but against Persons dwelling within their Shire And the Lords recommend to the Lord Register to take special care of the exact observance hereof And also Ordain the Clerk of the Bills not to receive any Bill of Caption or others upon any Horning not Registrate and marked in manner foresaid And Ordain Letters of Horning to be direct hereupon upon a Charge of fifteen dayes ACT against Sollicitation
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ— because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâ—dm creaâ— oruâ— but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâ—ght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâ—e sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
and salted them themselves to be proven by their Oaths and would not sustain the Probation of the Custom seing the principal Decreet was not produced unless that at least the Testimonies proving that Custom were repeated and produced out of the old Process that it might appear whether there were any ground of Objection against the manner of Probation Lady Colvil contra Lord Colvil December 14. 1664. THe Lady Colvil pursues the Lord Colvil to relieve her of the whole Debt hererable and moveable of the Defunct his Predecessor because the Defunct in his Testament had named her his Lady Executrix and universal Legatrix with a special Clause that she should be free of all his Debt whatsomever The Defender alleadged Absolvitor because no Deed done by a Defunct in lecto or in Testament can prejudge his Heir The Pursuer replyed that this Testament was made in the Defuncts leige poustie The Defender answered that on Death-bed and by Testament equiparantur Which the Lords found Relevant and assoilzied Laird of Phillorth contra Forbes of Aslocon December 16. 1664. PHillorth as Donatar to the Escheat of Forbes of Aslocon and having obtained general Declarator insists in his special Declarator It was alleadged Absolvitor because the Horning whereupon the Gift was granted is null in so far as being beyond Dee it is upon six dayes contrair to to the Act of Parliament 1600. Declaring all Hornings beyond Dee on less then fifteen dayes null conform to a Decision in Dury albeit on a Bond bearing a Clause of Registration on six dayes onlyâ— February 14. 1625. Steuart contra Bruce It was answered for the Pursuer that the Acts of Parliament hinder not the agreements of Parties but is expresly anent Hornings on Lawborrows or the like but these are on the parties own consent by the Clause of Registration and if these should not be valide all the Hornings and other Executorials thereon beyond Dee since 1600. would be null and such Bonds would have no effect seing upon the Clause of Registration Horning could not be otherwise direct on six dayes and so they should not have any summar execution The Defender answered that the Act is general of all Hornings and bears a general Reason because it is impossible for Parties at such distance to come to Edinburgh to Suspend in four dayes and privat pactions cannot derogat from general Laws where the express reason is for publick utility contrair to which no man can make himself Rebel more then he can give power to Incarcerat himself where Law gives no warrant but prohibits The Lords Repelled the Defense and sustained the Horning Innes contra Forbes of Touchon Eodem die INnes having Charged Forbes of Touchon on an Act of Adjournal for an Assythment for wounding him and reparation of his Blood He Suspended and alleadge the Act was null wanting Citation Compearance or probation It was answered that being the Act of the Justice General who is Supream in criminalibus it cannot be recognosced by the Lords The Lords having considered the case amongst themselves thought that in what was truly Criminal as to corporal pains or amerciaments in way of punishment they would not medle with the Justice Sentences but Assythment being civil for the Damnage and Interest of the Party pursuable before the Lords they might recognosce thereon and therefore in respect that the Probation of the Fact was by a Process before the Baillies they ordained that Process to be produced before answer and the Suspender to condescend if there was any exorbitancy in the Sum decerned for the Assythment Mr. Thomas Paterson contra Watson December 17. 1664. MR. Thomas Paterson Charges Watson to remove from his Gleib who alleadged the Designation is null because it is not subscribed by the Ministers Designers but is only the assertion of a Nottar 2ly By the Act of Parliament 1663. anent Gleibs there is an exception of Royal Burrows to which Ministers Gleibs are not due ita est Dysert is a Royal Burgh The Charger answered to the first that the having a warrand from the Bishop and Presbytrie his instrument of Designation is as sufficient as a Seasine to give Right to Land And to the second the Royal Burrows excepted must only be understood of such who have not a Landwart Congregation but are chiefly constitute of an Incorporation for Trade but this Burgh is notourly known to be but a Burgh of Barony holden of the Lord Sinclar albeit it has the priviledge of Vote in Parliament and is a Parsonage The Lords Sustained the Designation but before Extract ordained the Testificat of the Ministers Designers under their hands to be produced Sarah Blomart contra Earl of Roxburgh SArah Blomart pursuing the Earl of Roxburgh he alleadged she could have no Processes being of the Vnited Provinces who are declared enemies to His Majesty It was answered that there was no Denunciation of War by His Majesty as King of Scotland nor any Proclamation in Scotland to that purpose It was replyed that there was a Warrant by the King and Council to cease upon all the Dutch Vessels in Scotland The Lords found that this was but an Imbargo and no Denunciation of War in Scotland and therefore found Process Mr. Iames Reid Minister of North-Leith contra William Melvil December 20. 1664. MR. James Reid Charges William Melvil for the Teind of hard Fish bought by the said William in the Lewes and imported by him at Leith He Suspends on this Reason that he bought the said Fish from Merchants in the Mercat and did neither take the same himself nor bought them immediatly when they were green from the Taker and so can be lyable for no Teind The Charger answered that he is decennalis triennalis Possessor of getting twenty shilling of the Last of all Fish imported at New-haven and for instructing thereof produces a Decreet in Anno 1634. and another in Anno 1662. and if need beis offers him yet to prove Possession The Defender answered that these Decreets are expresly against the Fishers or Takers of Fish but not against Merchants buying and importing the same and as for the Custome non Relevat unless it were an universal Custome established by Sentences for if some few Merchants should have to save themselves trouble given an uncertain acknowledgement according to their own discertion and no fixed Duty nor by no compulsive way it imports not The Lords Suspended the Letters except only for such Fish as should be taken by the Boats and Fishers of New-haven Agnes Young and her Husband contra Buchanans Eodem die AGnes Young pursues Buchanans her Children for her third of her Husbands Moveables and for her Liferent use of the other two thirds conform to her Contract of Marriage whereby she is provided to his Liferent of all Goods and Geir conquest during the Marriage moveable and immoveable The Defenders answered that the Pursuer cannot both have the third and the Liferent of the whole because it must be presumed
thought to be Creditor in the same Clause The Lords found the conception of the Clause that the Brother by falling now Heir was excluded seing it was clear by the meaning of the Defunct that his Heir should have his Lands and his Bairns of his second Marriage should have though but one 4000 merks but here the Heir of the first Marriage was never served Heir They also found that the Portions of the Children being to an uncertain day and not conceived to their Heirs or Assigneys that they dying before that day had no right to the Stock but only the Annualrent medio tempore so that the Stock accresced to the surviving Children as if the Defuncts had never existed and that their Assigneys or Creditors could not have affected the same and so found the Brother had no right as nearest of Kin to the two deceasing Children not attaining the Age mentioned in the Contract William Stewart contra Stewarts Ianuary 18. 1665. WIlliam Stewart pursues a Poynding of the Ground of the Lands of Errol upon an Infeftment of Annualrent granted to his Grand-Father by the Earl of Errol by his Bond and Infeftment following thereupon in which Bond there were Cautioners the Annualrent was for a Sum of 7000 merk and a Sum of 8000 merk Compearance is made for the Pursuers Brothers and Sisters who alleadged that as to the Sum of 7000 merks it became moveable and belongs to them as nearest of Kine In so far as their Father made Requisition for the same It was answered the Instrument of Requisition is null and being disconform to the Clause of Requisition in respect that the Original Bond was to the Husband and Wife the longest liver of them two in Conjunctfee and their Heirs c. And the Requisition bears expresly That if the Husband or his Heirs required with consent of the Wife then the Debitor shall pay ita est the Instrumenet bears no consent It was answered that albeit some Points of the Requisition were omitted yet seing the mind of the Defunct appears to take himself to his Personal Right and consequenly to prefer his Executor to his Heir it is sufficient The Pursuer answered non relevat because every Intimation of the Defuncts Intention is not enough but it must be haili modo and the ground whereupon the Sums become moveable is because the Requisition looses and takes away the Infeftment and therefore if the Requisition be null the Infeftment is valid and he Bairns can never have access The Lords found the Requisition null and preferred the Heir Stewart contra Stewart Ianuary 19. 1665. IN the foresaid Cause it was further alleadged for the 8000 merk that it was also moveable because as to it there was no Liferenter and the Fear himself did require It was answered for the Children that the Requisition is null because it mentions not the production of a Procuratory nor the production of the Right it self 2ly The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul whereas he was Cautioner for the Earl of Errol granter of the first Bond. It was replyed oppones the Requisition bearing That the Procurators power was sufficiently known to the Notar 2ly non Relevat unless the Person required had called for the Procuratory or Right and had been refused 3ly The Procuratory is now produced with the Right and the Defunct acknowledged the Procuratory and Right because he raised horning thereupon The Lords sustained the Requisition and found the Sum moveable and preferred the Bairns thereto Shaw contra Lewens Eodem die WIlliam Shaw being a Factor at London and dieing there and having Means both in England and Scotland There falls a Competition betwixt his Executors nuncupative in England and his nearest of Kine Executors in Scotland Anna Lewens Executrix confirmed in England produces a Sentence of the Court of Probat of wills in England bearing That upon the Examination of Witnesses that Court found that William Shaw did nominat Anna Lewens his Executrix and universal Legatrix And that being asked by her what he would leave to his friends in Scotland He declared he would leave her all and them nothing because they had dealt unnaturally with him It was alleadged for the Defuncts Cusigns Executors Confirmed in Scotland that they ought to be preferred because as to the Defuncts Means and Moveables in Scotland the same must be regulat according to the Law in Scotland where a nuncupative Testament hath no use at all and albeit a Legacy may be left by word yet it cannot exceed a 100 lib. Scots It was answered that as to the Succession the Law of Scotland must regulat so that what is Heretable cannot be left by Testament though made out of Scotland As was found in the Case of the Successors of Col Henderson dying in Holland and in the Case of contra Meldrum yet as to the Solemnity of Acts to the Law and Custom of the Place where such Acts are done takes place as where an Act is done in Scotland albeit it be only probable by Writ or Oath of Parties yet being done in England it is probable by Witnesses though it were of the greatest moment and though the Law of Scotland in Writs of Importance requires the Subscription of the Partie before Witnesses or of two Nottars and four Witnesses yet Writs made in France and Holland by the Instrument of one Nottar are valid so here there being no difference from the Law of Scotland which always preferres Executors nominat before nearest of Kin and the difference only as to the Solemnities and manner of Probation that there it may be proven by Witnesses there was a Nomination and here only by Writ The Lords having considered the Reasons and former Decisions preferred the Executors confirmed in Scotland for they found that the Question was not here of the manner of Probation of a Nomination In which case they would have followed the Law of the Place but it was upon the Constitution of the essentialls of a Right viz. A nomination which albeit it were certainly known to have been by word yea if it were offered to be proven by the nearest of Kin that they were Witnesses thereto yet the Solemnitie of writ not being interposed the Nomination is in it self defective and null in substantialibus Lord Lour contra Ianuary 20. 1665. IN a Process for making arrested Sums furth-coming two Arresters viz. my Lord Lour and another Competing It was alleadged for Lour that the first Arrestment is null because the Partie was out off the Countrey when it was only made at his dwelling house which is not Legal seing all Summonds Intimations Premonitions Requisitions and all Denunciations against Parties out of the Countrey must be by Letters of Supplement from the Lords Execute at the Mercat Cross of Edinburgh and Peir and Shore of Leith So must Arrestments against these who are out of the Countrey be there Which the Lords found relevant and preferred the second Arrestment Personal
and so would not insecure Creditors doing diligence by Arrestment Lyon of Muirask contra Heretors of the Shire Eodem die LYon of Muirask having been Commissioner in the Parliament 1648. did by vertue of the Act of Parliament 1661. Allowing Commissioners Charges to these who served in Parliament 1648. Who adhered to the Engadgment charges the â—â—eretors of the Shyre to meet and Stent and their being a Stent made conform to the Valuation he Charges thereuponâ— some of the Heretors Suspends and alleadge that they were not charged to meet and so the Stent Roll is null 2ly That is not instructed that the Charger attended all the dayes in the Parliament 3ly That the Roll ought to be made according to the Retour and not to the Valuation conform to the Custom before the troubles The Lords found that seing the Heretors who met expressed in the Stent Roll that all the Heretors were charged that it was sufficient though the Executions against each on of them was not now produced and because the Sedâ—runts of the Parliament 1648. were not to be found They found he had right to the whole Charges during the Parliament unless for such time as they shall prove by his oath that he was absent but found that the Stent Roll ought to be according to the Retour and not to the Valuation Lady Greenhead conra Lord Loure February 10. 1665. THe Lady Craig and the Laird of Greenhead her second Husband pursues the Tenents of Craig wherein she is Infeft for Mails and Duties In which Process my Lord Loure coâ—â—pears for his Interest and alleadges that he having Appryzed the Estate of Craig and being Infeft thereupon hath raised Reduction of the Ladies Infeftment on this Reason that a Part of his Sumes being anterior to the Ladies Infeftment who was competently provided by her Contract of Marriage in 30. Chalder of Victuall and this additional Infeftment of fifty Chalder of Victual being betwixt most Conjunct Persons Husband and Wife in so far as it is posterior to the Pursuers lawful Debt ought to be Reduced upon the Act of Parliament 1621. The Pursuer answered the Reason ought to be repelled First Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts in prejudice of their lawful Creditors is not relevant seing Craig the Disponer was not a Bankerupt 2ly As he was not a Bankerupt so neither was heâ— insolvendo because the Reversion of his Estate is sufficient to pay his Debt albeit the Same were affected with this additional Joynture It was answered for the Defender that albeit the Title and Narrative of the Act be against Bankerupts yet the Statutory part thereof is against all gratuitous Dispositions by Conjunct Persons so that the Defender needs not alleadge that either the Disponer was Bankerupt or insolvendo but that the Ladies Infeftment is betwixt Conjunct Persons without an onerous Cause The Pursuer answered that the Disponer was neither Bankerupr nor insolvendo and the Defender can have no Interest unless there were fraud or prejudice which the Defender cannot alleadge because the Pursuer is content that the Defender have access by his Appryzing to the Joynture Lands In so far as will satisfie his Annualrents and by the Act betwixt Debitor and Creditorâ— the Lords are impowred to restrict Appryzings to their Annualrent and so he can pretend no prejudice providing he assigne the Lady to his Appryzing in so far as he satisfies his Annualrent out of her Additional Joynture The Lords found the answer to the Reduction Relevant upon purging of the Appryzers prejudice not only by admitting him to have access to the Appryzed Lands upon Assignation as said is during the Legal but with Declaration that if the Lady Redeemed not within the Legall the Lands should be irredeemable and the Lady totally excluded Earl of Lauderdail contra Lord Oxfuird February 11. 1665. THe Earl of Lauderdail his Guidsir being Infeft in the Barony of Musselburgh which is a part of the Abbacy of Dumferling by a Gift from King Iames in Anno 1584. Excepted by the Act of Parliament for Annexation of Kirklands in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King as Heir to Queen Ann his Mother who had a Heretable Disposition of the whole Lordship of Dumferling from the King after Lauderdails first Right Lauderdail obtained Conformation of his first and subsequent Rights in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right void Which Ratification bears an express provision That it shall not be prejudged by the Act salvo jure cuâ—uslibet The Defender alleadged absolvitor in hoc judicio possessorio because his Father was Infeft by the King in Anno 1641. And by vertue thereof in possession twenty years before this persuit and as for his Ratification the Defender not being called thereto it cannot take away his Right being founded super jure communi untill the Pursuer insist in Reduction In which case the Defender shall answer but is not oblidged to answer in hoc judicio and as for the exception of the Act salvo jur It s against the common Law and the Act salvo jure is posterior without repeiting that exception The Pursuer opponed his Ratificatiom excepting the Act salvo jure which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right The Lords cannot be Judges to reduce the Sentence and Statute of Parliament as Durie observes to have been found in the Case of the Earl of Rothes and Iohn Stewart of coldinghame The Defender repeiâ—ed his answer and for these Decisions opponed the Tennor of the Act salvo jure 1633. And repeited 1661. Whereby the Lords are ordained to decide in the Rights of privat Parties according to Law without respect of Ratification or other privat Statuts in favours of particular Persons such as this which being after this decisions clears and enlarges the power of the Lords The Pursuer opponed his Ratification and exception of the Act salvo jure which bears expresly That it should stand as a publick Law and so was no privat Statute mentioned in these Acts Salvo jure The Lords having considered the Case and that such exceptions from the Act Salvo jure were of dangerous consequence to the Leidges They ordained the Parties before answer to dispute the point of Right as if such an exception of the Act Salvo jure had not been granted but they thought that Defense upon a possessory Iudgement being but a point of form whereby the Rights of Parties were not competent by exception or reply the Parliament might dispense therewith and also might repone Parties as to the matter of Prescription or quoad minor non tenetur placitare but if without these and such the Pursuer had a prior valid Right The Lords were loath to enter upon the case of
over-rule his Deputs for whom he was answerable and therefore was oblieged to Reside that albeit he did not constantly sit yet he might advise with his Deputs in important Cases and the Lieges might have access to him to complain in case of the Deputs Malversation and as to the power of Deputation it self and the Injunctions The Lords found that the Defender was in bona fide to enjoy these Priviledges till it was declared notwithstanding he was required to the contrair but as to the future they found that he ought to reside and make use of no Deputs without the consent of the Archbishop but whether that should be only pro re nata or by a warrand for such Persons not only upon necessar occasions mentioned in the injunctions but also in others that the Deputs might ordinarily sit and advise with the Commissars in Cases of importance The Lords were of different judgements and recommended to the Bishop in common to consider what was fit in that Case but declared only according to the Injunctions without interpretating how far the Deputation should reach Children of the Earl of Buchan contra Lady of Buchan February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment It was alleadged absolvitor because their was neither Law Statute nor Custome of this Kingdom oblidging a Mother to Aliment her Children 2ly Albeit there were she offers her to admit them in her Family and to entertain them according to her means but can never be oblidged to pay a modification in Money out of the Family for in all Cases of Aliment of Wives or Children against Parents the offer to accept and Aliment them in the Family according to the Parents Means doth alwayes exclude Modification as was lately found in the Case of Sir Andrew Dick and his Son It was answered that the Law of Nature is a part of the Law of this and all other Civil Kingdoms and according thereto the Lords do alwayes decide in Cases now occurring where there was neither Statute nor Custome and if Aliment be due the manner and measure is in arbitrio judicis who may justly ordain their Children to be bred from their Mothers seing she hath miscarried and Married a deposed Minister It was answered that the Law of Nature without our Custome is no sufficient Law to us and does not induce obligationem civilem but only pietatem affectum upon which ground it is that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters which insinuats that there was no such Law before and if the Law of Nature be the adequat Rule we are oblidged to entertain the Poor and all in distress and therefore they might pursue us thereupon 2dly There is no Reason to put it in arbitrio judicis whether a Child should be Educat with the Parent who must Aliment him even upon pretence of the Parents miscarriage for that being the indispensable Right of Parents to educat their Children as they see cause especially who demand Aliment of them it ought not to be in the arbitrament of any Judge unless it were a Parliament and this arbitriment would lay the Foundations to encourage Children to desert their Parents and to claime Aliment out of their Family and to pretend the Parents miscarriages as unfit Persons to be bred with and not breeding them in a fit way which accusations were prohibit by the Civil Law and never admitted by our Custome for albeit the Lords may appoint the way of Education of Pupils their Parents being dead yet Tutors have no such interest as Parents The Lords found the Mother oblidged to Aliment the Children jure naturae which was sufficient to infer this Civil Obligation and Action but found that the offer of Alimenting them in her Family was sufficient according to her means and they could demand no Aliment nor Modification extra familiam For they found that the Lords had thus sustained Aliment to Children against theîr Fathers not upon the Act of Parliament which is competent against all Liferenters and Donatars without consideration of their being Parents but super jure naturae which they found would not extend to the obligation of Charity and which had no definite rule but at the discretion of the giver and was not allowed as a civil obligation by any Nation Grant contra Grant February 24. 1666. GEorge Crant having Appryzed a Wodset Right from Grant of Mornithe and thereupon obtained a Decreet of Removing and Mails and Duties against Grant of Kirkdails Reduction was raised thereof and of the ground of the same viz of the Wodset Right on this Reason that the one half of the Sum was payed and the Wodset renunced pro tanto long before the Appryzing It was Replyed that there was an Inhibition for the Sum whereupon the Appryzing proceeded after which Inhibition if any payment was made or Renunciation granted the samine was reduceable ex capite Inhibitionis It was answered that all that the Inhibition and Reduction thereupon could work was in so far as might extend to the satisfaction of the Sum and now they were willing to satisfie the whole Sum cum omni causa It was answered that no satisfaction could now be accepted because Appryzing having followed upon the samine and being expired and no satisfaction being offered within the Legal or the time of the Reduction it cannot now be admitted It was answered that the Inhibition could not only work that nothing done after the same should be prejudicial to the Sum but altered not the Case as to the Appryzing led long thereafter unless the Inhibition had been raised upon the Appryzing The Lords found that Inhibition could not be taken away or satisfied by payment of the Sums after the expiring of the Apprizing wherein the President remembred of a former Case that even in the obtaining of the Reduction ex capite Inhibitionis the offer to satisfie the Sum whereon it proceeded was repelled In respect an Appryzing thereupon was expired Sir Robert Sinclar contra Laird of Waderburn Eodem die JOhn Stewart Son to the Earl of Bothwell being Abbot and Commendator of Coldinghame the Earl being Forefaulted in Parliament his Son was dishabilitat to brook any Lands or Goods in Scotland whereby Iohn fell from the Right of Provision of the Abbacie Thereafter the King annexed the Abbacie of Coldinghame which was excepted from the general Annexation 1587. to the Crown excepting the Teinds and gave Right of Reversion both of Lands and Teinds to the Earl of Hoom who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn Thereafter Iohn Stewart was by Act of Parliament restored and the former Act of Dishabilitation rescinded whereupon Iohn Stewart demitted his temporal Provision in the King's hands and got it Erected in an Heretable Right he thereupon Infeft Dowglas of Ivleck for relief of Sums Sir Robert Sinclars Lady as Heir to him
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ— The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself
The Creditors alleadged that the assignation being in the hands and custody of Mr. Alexander the Granter it must be proven by Writ he being dead that it was delivered and not by Witnesses for there is nothing more frequent then Parties upon intentions to subscribe Bonds Assignations and other Rights and yet do not de facto deliver them or if they have been delivered to satisfie them and retire them and if Witnesses were admitted to prove the delivery or redelivery of such Writs the Lieges would be in extream unsecurity contrary to our Law that admits not Witnesses above an hundred Pounds and therefore Chirographum apud debitorem repeatum praesumitur solutum which presumption cannot be taken away by Witnesses The Pursuer answered that though this holds in Bonds where there is a Debitor and no other adminicle to instruct the Debt yet this is an Assignation and the Cause thereof otherwise instructed and most likely to be truely done and it is offered to be proven that this Assignation was delivered back to Mr. Alexander to be made use of as Agent for the Pursuer The Lords refused to sustain this Member of the Probation but because of the poverty of the poor Woman recommended the case to the Creditors to be favourable to her and did forbear to write the Interlocutor Hay of Knockondy contra Litlejohn Eodem die HAY of Knockondy pursues Litlejohn for the damnage sustained by him by the fall of Litlejohns House called the Tower of Babylon whereby the Pursuers House adjacent was broken down The Defender alleadged First The Libel was not relevant unless he had been required to find Caution de damno infecto as is required by the Civil Law whereby if that Caution were not required there is an express Text in the Title de damno infecto that there shall be no Action but the Party shall impute his loss to his own negligence Likeas we have two special Statutes concerning ruinous Houses which prescrive the method of preserving them and making up the damnage none of which being followed the Defender is not lyable 2ly Whatsoever might be alleadged against the Heretor of the said House the Defender is only an Appryzer of a Liferent-Right for a small Sum and the Liferenter was not obliged to repair a Tenement manifestly ruinous that could not be preserved but with great Expence and Rebuilding much less the Appryzer who hath but a small Sum on it The Pursuer answered to the first Defense that his Libel was most Relevant Damnage upon any fault being due and Reparable by the Law of Nature and as for the Civil Law it hath no Effect with us in this point our Custom neither giving nor requiring such Caution much less refusing Action if it be neglected and as to our own Statutes though they be very convenient wayes for securing of damnage yet they are not exclusive nor have they any Clause except in these Cases and in that method Damnage shall be irrecoverable To the 2d it was answered The Pursuer was not obliged to know or enquire whether the Defender was Heretor or not but he finding that he was a Neighbour behaving himself as Heretable Possessor by uplifting the Duties he did pursue him and if need beis offers him to prove that he did require him to keep him skaithless though he took no Instrument thereon The Defender answered that he was not obliged to take notice of such Requisitions not being Solemn by Instrument The Lords found the Defender lyable albeit there had been no Requisition verbal or otherwise it being proven that the Ruinousness of the Tenement that fell was notour and manifest to the Defender himself whereby he was obliged either to demolish the House if it was not Reparable or to have quite his Possession to evite the imminent damnage of Neighbours Lord Colvil contra Feuars of Culross Decemb. 15. 1666. THe Lord Colvil as Heretable Bailzie of Culross having Charged the Lord Kincairn and others for the Taxation of their Lands in Culross conform to the stent Roll They Suspended and alleadged that the stent Roll contained a fifth part more then the Taxation It was answered and offered to be proven that it was the Custom of that and other Benefices at their meeting of making the Stent-roll to add a fifth part for Expenses and Charges of ingathering the Taxation The Defenders answered that if any such Custom were it was against Law and against the Liberty of the Subject who could be lyable for no payment but by Law or of their own consent or if any such Custome were it hath been by the consent of the Vassals or at least they have not questioned the same nor is there any ground for such an addition for the Kings Officers being obliged by their Office to Collect His Majesties Taxations they can demand nothing of them who payed without Process and if they be put to Process the Lords will modifie such Expences as they see cause The Charger answered That such immemorial Customes have the strength of Law and that it was done with the consent of all the Vassals who conveened and that it was the Suspenders fault that they conveened not to make the stent Roll which should not put them in better case then they had conveened or if they had conveened and disassented there is no reason that the dissassent of a few should be preferred to the consent of the most part who as they may Vot in the stent Roll for the Taxation it self in which the plurality carries so must they for the necessary Expences and all that can be alleadged with reason is that the Lords may modifie the Expences of a fifth part if it be too high The Suspenders answered that Law authorized the Feuars as a Court and Judicature to meet and stent which implyes a power to the Plurality but there is no such warrand for Expences as to which the consent of a hundred cannot oblige the dissassent of one or of one absent and the absents have loss enough that they have not a Vot in their own Stent The Lords sustained the Reason of the Suspension notwithstanding of the answer and found that no Expences nor any thing more than the Taxation could be stented to have effect against these who consented not but they would modifie Expences in case of Suspension as the Cause required but modified none in this case because a fifth part was Charged for more then was due Lord Newbeath contra Dumbar of Burgie Decemb. 18. 1666. THE Lord Newbeath having right from Iames Mcken who had appryzed the Lands of Burgie pursues Reduction and Improbation against young Burgie and Iohn Watson and insists on this Reason that any Rights they have are null and fraudulent being Contracted after his Debt and the Right granted to young Burgie is null as being but a base Infeftment not cled with Possession before the Pursuers publick Infeftment The Defender alleadged that his Infeftment was cled with Possession in so
her Children and Disponed 36 Chalders of her Liferent of the Lands of Innertyle to Cuninghame of Woodhal who transferred the same to Mr. Alexander Fâ—ulis of Ratho who granted a Back-bond bearing That his Name was made use of for the use and behove of Collingtoun and his Lady and that to this effect that the profit of the Liferent should be applyed to the Aliment of their Families joyntly and therefore obliged himself to Dispone in their favours and de presenti did Dispone The next day after this Disposition there is a Contract of Marriage betwixt Collingtoun and the Lady wherein there is this Clause that Colâ—ingtoun Renunces his jus mariti to the Lady's Liferent or any other Right he might have thereto by the subsequent Marriage and takes his hazard for what he may have any other way Mr. Alexander pursues the Tennents upon his Disposition Compearance is made for the Lady who alleadges he hath no interestâ— because he is denuded by the Back-bond Compearance is made for Collingtoun who declared he concurred with Ratho and consented he should have the Mails and Duties to the effect contained in the Back-bond and that he would not make further use of the Re-disposition contained therein It was answered for the Lady that Collingtouns concourse could not sustain this Process because Ratho was already de presenit denuded in favours of Collingtoun and her Likeas Collingtoun was denuded by his Contract of Marriage whereby he renunces his jus maâ—iti and all other Right he can have to the Liferent Laâ—ds in favours of the Lady and so renunces the Clause of the Back-bond in so far as it is in his favours It was answered that the Contract of Marriage could not derogat to the Back-bond unless the Back-bond had been per expressum Discharged or Renunced therein because albeit the Contract of Marriage be a day posterior to the Back-bond yet both are parts of one Treaty of Marriage and so in the same condition as if they were in one Writ so that a posterior Clause in general Terms cannot take away a prior special Clause of this moment yea though it were in a Contract leâ—s favourable then a Contract of Marriage which is ubeâ—â—mae fidei general Clauses are not extended above what is specially exprest and the jus mariti being exprest and the Back-bond not exprest it cannot be presumed that they changed their minds in one night to Renunce the benefit of the Back-bond but this Conveyance was made of purpose because Collingtoun being in Debt if the Right were Constitute in a third Party and only to their behove as an aliment the Creditors could not reach the same but it were the greatest Cheat imaginable to conceive that the general Clause subsequent should evacuat the whole design and take away the provision of the Back-bond Neither doth the general Clause renunce all Right that Collingtoun had or might have to the Liferent-lands any manner of way but only all Right he could have by the subsequent Marriage any manner of way Ita est that he doth not claim Right jure mariti nor by the subsequent Marriage but by the Paction contained in the Back-bond and it is most certain that the jus Mariti which is most peculiar to this Nation doth not comprehend all Rights a Husband hath in relation to the Person or Means of his Wife but only the Right of moveable Goods or Sums which without any Paction whatsoever way they come in her Person belong ipso facto to him not by Paction but by Law and that jure mariti or by vertue of the Marriage so thaâ— albeit he could not have Right even by the Paction except that he were Husband or that Marriage had followed yet his Paction is his Title and not the Marriage which is but tacita conditio or causa sine qua non so that Discharging or Renuncing of the jus mariti or the benefit by the Marriage if it were posterior to the Contract of Marriage would not take away the Contract and being in the Contract cannot take away the prior â—action and Disposition granted by the Wife in favours of a Husband or a third Party to his behove It was answered for the Lady that she adheres to the clear express Terms of the Contract of Marriage which Renunces not only the jus mariti but all other Right to the Liferent-lands by the subsequent Marriage which being a several Writ and a Day posterior most necessâ—rly take away the Back-bond without considering the meaning of Parties quia in claris non est loâ—us conjecturis at least the meaning can be no otherways cleared but by Writ or the Ladies Oath otherwise the most clear and solemn Contract shall be arbitrary and may be taken away by presumptions or conjectures and no man shall be secure of any Right 2ly Verba sumendasunt cum effeâ—â—u iâ— this did not take away the Back-bond it had no effect for the Lâ—dy before the Contract was denuded of her whole Liferent both of Inneâ—tyle and in the North so that there was no need to Renunce the jus mariti or Right by the Marriage to the Liferent-lands It was further alleadged by the Lady that albeit the Renunciation could not reach the Back-bond in so far as it is a Paction so that it yet stood effectal for application of the Liferent right for the aliment of the Lady and Collingtouns Family joyntly yet thereby they both had a Communion and Society equally and the Husband could pretend no Right in the administration or manadgement but only jure mariti in so far as he is Husband and therefore he acknowledging that he has renunced his jus mariti cannot pretend to the administration of this aliment but it must remain intirely to the Lady The Lords found that the Clausâ— in the Contract of Marriage did not derogat to the Back-bond and as to the Point of administration they considâ—red it to consist in two things in uplifting the Rent and manadging the Liferent-lands and in the application thereof to the use of the Family and manadging the Affairs of the Family As to the first they found thâ—â— both Parties having entrusted Ratho the Trust of manadgement of the Rent could not be taken from him without Collingtouns consent and as for the manadgement of the Family it self they found that it neither was nor could be reâ—unâ—ed by the Husband in favours of the Wife and that any such Paction though it had been clear and express taking the Power and Government of the Family from the Husband and â—â—ating it in the Wife is contra bonos moresâ— and void aâ—d that the jus maritiâ— as it is properly taken in our Law for the Husbands interest to the Wifes Moveables being Renunced cannot be understood to reâ—â—h to the Renunciation of the Husbands power to Rule his Wife and Family and to administrat the aliment thereof Elizabeth Ramsay contra Ker of Westnisbet Eodem die ELizabeth Ramsay having pursued an adjudication of
wayes secure contra acquirenda unless the Assignation or Disposition had been equivalent to the Debt and satisfied it The Defender answered that that which was here Acquired was only a Fee for Service which is Alimentar and the Fee will not be due unless the Defender Serve in suitable condition effeirand to his place and therefore it cannot be made forth coming to any other use The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service could not be reached by his Creditors to whom he had made cessionem bonorum except as to the superplus more then what was necessar and they found no superplus in this case Captain Allan contra Parkman Eodem die CAptain Allan having taken Bartholomew Parkman and obtained him to be declared Prize Parkman raises Reduction and for fortification of the Admirals Decreet of Adjudication these Grounds were alleadged First That by the Testimonies of the Steirsman and Company it was proven that three of the Company were the Kings Enemies and so conform to the Kings Declaration of War Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies this Ship was Prize as was lately found in the case of the Ship called The Castle of Riga And albeit by a former Interloquitor the Lords had not found three men to be a number sufficient for Confiscation Yet it was not then considered that the whole Company consisted but of eight so that near the third of the Sailers were the Kings Enemies and one of them the Steirsman which is a considerable proportion 2dly This Ship though pretended to belong to the Swedes yet she had served the Kings Enemies the Danes and Hollanders two years and by the Swedish Treaty it is provided quod naves nullo modo accommodentur utriusque foederati inimicis 3dly It is also proven that this Ship carried Counterband-goods viz. Tar which was not the product of Sweden but carried from Denmark to Holland and that she was taken in her return having in a loadning of Salt from France so that albeit the Ship had been empty she might have been taken Prize in that same Voyage in which she did partake with the Kings Enemies or being taken in the same Voyage in which she had carried bona hostium And lastly it was also instructed that the Cargo with which she was taken was the product of the Counterband-goods and so in the same case as if the Counterband-goods had been actually in her the product being surrogatum quod sapit naturam surrogati It was answered for Parkman to the first Ground that he opponed the Lords Interlocutor finding three Sailers no sufficient number for Confiscation And in the case of The Castle of Riga the major part at least the half were the Kings Enemies To the second Ground it was answered that the Kings Allies making use of their Ships for Fraught was no way a lending of them to the Kings Enemies and as for the remnant Goods by the Kings Declaration of War there is only given Warrand to sease Ships having in them Counterband-goods or Enemies Goods and the Swedish â—rety bears expresly si deprehenduntur so that this Ship having in her when she was taken no Counterband nor Enemies Goods is free It was answered that the Kings Declaration although it mention some cases of Seasure is not full or exclusive but the Law of Nations must take place or the Custom of Scotland in cases not exprest in the Kings Declaration And as for the Swedish Treaty it cannot be pleaded unless Parkman had a Pass from Sweden in all points conform to the Treaty but their Passes were in several things disconform as being granted when the Ship was in Holland and sent over Land And as for the Custom of Scotland to take Ships in the return of that Voyage in which they carried Counterband or prohibited Goods it appeareth by the Captains Commission and former Commissions in Anno 1628. and by a Decreet declaring a Prize wherein the same ground was Libelled that she was taken in the return of that same Voyage in which she had carried Counterband And the Lords having Written to my Lord Secretary his Letter in return bears That the Lords should decide according to the Law of Scotland It was answered for the Stranger that the particular Custom of Scotland can be no Rule for the Swedes but only the Law and Custom of Nations â— and that England nor no other Nation hath that Custom to make Seasure but in delicto otherwise all Trade and Commerce would be destroyed unless Seasure were only upon what were visibly Aboard and not upon the pretence of what had been Aboard and albeit a Delinquence once committed by partaking with the Kings Enemies might endure for a longer time Yet the Custom of Nations for the utility of Trade hath Abridged it to actual Seasure in delicto and accordingly Judge Ienkins Judge of the Admirality in England hath Attested that during this War after search of the Records and Conference with other Judges he knows not of any Prize declared but when the Counterband goods or Enemies Goods were taken actually in them And for the Decreet alleadged on albeit that Ground be in the Libel yet other Grounds are also therein and there is no Debate as to that particular Point neither doth the Probation mentioned in the Decreet clear that that Point was proven And as to the Tenor of the Commissions albeit they might excuse the Captain from Fine or Damnages yet Strangers did not nor were not obliged to know the same but the Law and Custom of Nations and the Kings publick Declaration of the War and their Treaties The Lords having considered the Debate and that the several Points were of Importance and Preparatives they resolved to take the Grounds joyntly and so found the Ship Prize as having so considerable a proportion of her Company the Kings Enemies Some also were of the opinion that she having been taken in the return was sufficient especially not having a sufficient Swedish Passâ— but the plurality waâ—ed these Points whether the returns of Enemies Goods or Counterband or whether the Product or not Product thereof were sufficient Grounds of Seasure seing it did not so appear by the Custom of Nations or the Kings Declaration of War but by the former Debate it appeared that she had Aboard when taken a small parcel of Tar. Mr. David Falconer contra Sir Iames Keith Iuly 14. 1668. MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam that he being in the exercise of his Office informing the President to stop a Bill of Suspension given in by Sir Iames Keith Sir Iames did revile and threaten him calling him a Liar and a Knave and saying if he found him in another place he would make him repent what he said The Lords having received Witnesses in their own presence and finding it proven sent Sir James
the Disposition is void as being causa data causanon secuta 2dly Both the Disposition and Provision in the Contract that failing Heirs of the Marriage the 1000. pound should return to Iohn VVatson were obtained by Fraud and Circumvention being granted to a Curator ante reddiâ—as rationes by a Person who lately was his Minor and who was of a weak capacity Stupide and halfe Deaf and upon such unequal Terms her Means being worth 3000. pounds as appears by a Decreet obtained at her Instance and all she got being but 1000. pounds to return to Watson in case there were no Children and nothing secured on the Husbands part The Defender answered to the first that albeit the Disposition was of the same date with the Contract of Marriage it did not conclude that it was in Contemplation of the Marriage and might be and truly was an absolute Bargain As to the Reason of Circumvention it is not Relevant although the Terms had been as unequal as they are alleadged for the said Margaret Trench might freely Dispose of her own at her pleasure and leave it to Iohn VVatson who was her Mothers Brother if she had no Children especially seing David Trinch the nearest on the Fathers side is but her Goodsires Brothers Oy and never took notice of her whereas Iohn Watson Alimented her from her Infancy and obtained Decreets for her Means and never received a Groat thereof neither was there any inequality betwixt the 1000. pound and her means for which albeit there be a Decreet in absence of a greater sum yet there are unquestionable Defalcations which being Deduced with her Aliment there will not be 1000. pounds free The Lords conceiving the Matter to be very unwarrantable on the Curators part in taking this Disposition and Substitution before his Accompts with his Minor were given up did reduce both the Disposition and Substitution not only as done in Contemplation of Marriage but as being presumed fraudulent and unwarrantable Mr. Iohn Hay contra the Town of Peebles February 19. 1669. MR. Iohn Hay Insisting in his Declarator that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled wherein he stands Infeft in Property It was alleadged for the Town of Peebles that they do not acknowledge his Right of Property but they alleadge that they are Infeft by King Iames the second in their Burgage Lands with the Commonty of Priest-shiels and likewise by King Iames the fourth and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh he Perambulate their Commonty and hath set down Meithes and Marches thereof which are exprest in their Decreet of Perambulation within which their Meithes lie and that in Anno 1621. they have a Charter from King Iames the sixth of their Burgage and Commonty of Priest-shiels comprehending expresly thir Hills by vertue whereof they have been in peaceable Possession thereof as their proper Commonty by Pasturage Feuel Fail and Divot and by debarting all others therefrom The Pursuer answered that their Charters was but periculo petentis the King having formerly granted the Right of thir Lands to his Authors and the Decreet of Perambulation by the Sheriff of Edinburgh was a non suo judice the Lands not being within the Shire and for any Possession they had it was not constantly over all the year but only a while about Lambas of late and was still interrupted by him and his Authors and offered him to prove that they have been in immemorial Possession by Teiling Sowing and all other Deeds of Property and that thir Hills cannot be part of their Commonty there being other Heretors Lands interjected between the same and the Commonty of Priest-shiels so that the Pursuer ought to be preferred being in libello and far more Pregnant and specially alleadging Acts of Property by Tillage and the Defenders having Declarator depending of their Commonty and alleadged a Practique at the Instance of Sir George Kinnaird where he alleadging upon Property more pregnantly was preferred to an other in Probation alleadging Pasturage The Lords preferred neither Party to Probation but before answer Ordained a Perambulation to be and Witnesses adduced hinc inde anent the Situation of the Bounds and either Parties Possession and Interruption Lord Elphingstoun contra Lady Quarrel Eodem die THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun this Qâ—ere came in from the Auditors how the small Articles of uncost should be proven It was alleadged for Quarrel that such Articles could be proven no other way but by his Oath seing it was impossible either to use Witnesses or for them to remember such small particulars occurring every day especially seing it was known to all Coal-masters that such particulars were ordinarly incident It was answered for the Lord Elphingstoun though these Particulars were small yet they amounted in whole to 2000. merks and that the Tutors ought to have keeped the Coal-Grieves weekly Books wherein every particular was set down dayly as they were expeded which if they were produced and both the Tutors and Coal-Grieves Oathes were taken thereupon that they were truly so payed as they were recently set down they might be allowed but no such Book being produced the Tutor could not give a Compt thereof at random nor could his Oath in Astruction thereof be received because it were impossible for him to remember these small particulars without the Books It was answered for the Tutor that during the Dependence of this Process the Books were lostâ— which were made up by the Coal Grieves weekly but that he produced a Book made up of these Books and was willing to give his Oath that the first Books were lost and that thir Books albeit they be not direct Copies of the former Books yet that they were made up of the former and did agree in the matter with them and contained no more then they did The Lords refused to Sustain this manner of Probation but ordained Quarrel to condescend de casu ommissionis of the first Books and adduce such Proofs and Evidence thereof as he could and also to condescend who was the Writer of the latter Books that he might be Examined how he made up the one from of the other Kings Advocat contra Craw. Eodem die THe Kings Advocat pursues a Declarator of the Bastardy of one Craw. It was Alleadged for the Defenders that the Libel was not Relevant unless it had been condescended who was the Bastards Mother and offered to be proven that she was never married to his Father It was answered that not being married was a Negative and proved it self unless the Defenders condescended upon the Father and offered to prove married The Defender answered if that was Relevantâ— the most of all Scotland might be declared Bastards it being impossible after a considerable time to instruct the Solemnizing of a Marriage but Law and Custom doth require that at least it must be
Witnesses do agree that the arrestment was made by the Caption at the Tolbooth Door in presence of the Jaylour and though it was not so formally done by Commanding the Jaylour yet it was sufficient that the Prisoner was Commanded in the Jaylours presence which is sufficient albeit not so formal in making the Jaylour Witness neither can respect be had to the Jaylours Oath denying that he was Witness because confessing he was Jaylour he is a Party lyable for suffering the Rebel to escape neither doth it import that after so long a time the affirming Witnesses do not remember all the Circumstances seing he affirms the arrestment to be made and that by his own advice he being also a Messenger nor is the Pursuer obliged to Dispute the Fame of the Messenger who lived at so great a distance from him and was continued in that publick Trust undeposed so that there being three Witnesses insert in the Execution of the Arrestment one of them who is an inhabile Witness as a Party denying another affirming the third being Dead doth unquestionably stand as a proving Witness for where are many Witnesses in a Writ or Execution if there be one living that affirms all that are Dead affirm with him though other living Witnesses deny Much more here where of three two being alive the one affirms the other denys but iâ— a Party concerned and the Messenger also affirms The Lords found that there being here no formal arrestment made to the Jaylour astructed by the Testimoâ—ies of the Witnesses and that the intimation thereof was clearly improven they Assoylzied the Magistrates but if the arrestment had been good they would not have â—ound the Intimation necessar whether the Town keeped a Book or not but that the arrestment made to the Keeper of the Tolbooth whom they intrusted were sufficient Dowglas of Lumsdean contra Dowglas Iune 22. 1670. UMquhil Dowglas of Lumsdean Dispones his Estate to Archibald Dowglas his Son reserving power to himself at any time during his Life to burden the Estate with four thousand merks and did thereafter grant a Bond of four thousand merks in favours of Elizabeth Lyel his Wife in Liferent and of Iohn Dowglas their Son in Fee who thereupon pursues the said Archibald for payment The Defender alleadged Absolvitor because the Reservation in the Disposition being in favours of the Defunct can only be understood of a Legal power to burden according to Law Ita est This Bond of Provision was granted by the Defunct when he was not in legitiâ—ua potestate but on Death-bed especially seing the Reservation does not bear a power to Dispone at any time time in his Life etiam in articulo mortis which is the Clause ordinarly adjected when the meaning of Parties is that the power should extend to Deeds on Death-bed and thereupon the Pursuer hath intented Reduction which he repeats by way of Defense The Pursuer answered that the Defense is no ways Relevant because the priviledge excluding Deeds on Death-bed is introduced by Law in favours of Heirs only that the Defunct may not prejudge his Heir on Death-bed but if a Party Dispone he may qualify his Disposition as he pleases and he who hath so accepted the Disposition cannot quarrel the same and albeit these words etiam in articulo mortis are sometimes adjected propter majorem caâ—telam yet the words at any time during his Life are sufficient to import either in his Health or in his Sickness The Defender answered that whatsoever might be alleadged if the Disposition had been to a Stranger of that interpretation of the words yet this Disposition being granted to the Disponers own eldest Son and appearand Heir it must be understood only of such Deeds as might be done against an Heir and here the Creditors do also concur who in place of the Heir might pursue the Reduction and against whom the Personal objection of acceptance cannot be alleadged The Pursuer answered that the Defender was not appearand Heir because it is notourly known that his Father begot him in Adultery upon the Wife of Sir Alexander Hume for which Adultery she was Divorced from her Husband and albeit he did co-habit with her thereafter as his Wife that cannot infer as in other cases that she was his Wife because Marriage cannot consist betwixt the Adulterer and the Adulteress and all their Issue are disabled to Succeed so that the Pursuer of the Reduction is the eldest Son and appearand Heir in whose favour the Provision is made 2dly Albeit the Defender were or could be appearand Heir yet here having accepted a Disposition of the whole Estate Burdened with this Provision his acceptance excludes him who is thereby bound and cannot pretend to any priviledge of an Heir for albeit re integra he might Renunce the Disposition and return to bruik as Heir now he cannot having bruiked by the Disposition and for the Creditors concourse they are not Pursuers and they may insist in any Action competent to them by Law but cannot oppose this Personal obligement whereby the Defender by the acceptance of the Disposition in these terms is become obliged to pay the Pursuer the Sum in the Reservation The Lords Repelled the Defense and found that the Reservation in the terms as it stood did extend to burdening of the Estate at any time the Disponer pleased and was in capacity of Sense and Reason though on Death-bed and found no necessity to dive in the questions concerning the Defenders Procreation and capacity of Succession seing he had accepted and bruiked by the Disposition so qualified and did not admit the Creditors to oppose this Conclusion but reserved their Rights as Accords Elizabeth Finlaw contra The Earl of Northesk Iune 25. 1670. ELizabeth Finlaw and her Children as Executors to Robert Beatâ—â—e did Assign to the Umquhile Earl of â—athie a Bond granted by the Laird of Duâ— to the said Robert 〈◊〉 of 2200. Pound and the Laird of Morphie standing infeft under Trust in Duns Estate grants a Bond of Corroboration to Eathie obliging him to pay all Sums due by Dun to Eathie himself or to which he was Assigned by Duns Creditors thereafter Morphie grants a second Bond of Corroboration to Eathie but derogation of the 〈◊〉 Bond of Corroboration obliging him to pay what Sums were due by Dun to Eathie for himself or as Assigney and that out of 〈◊〉 superplus of Duns Estate more then payed Morphie himself The Earl of Eathie transfers the Bond of 2200. Pounds and both these Bonds of Corroboration in favours of the said Elizabeth and her Children and the Translation bears for Sums of Money payed by them to Eathie and bears that the second Bond of Corroboration was Delivered but bears not that the first was Delivered neither bears it the obligement to Deliver the same the Translation also bears Warrandice from Eathies own Deed. The said Elizabeth and her Children having pursued Morphie upon the said second Bond of Corroboration he
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
fructus consumptos suos It was answered that a Title that needs Reduction may be the Ground for Possession bona fide but this is absoltely null by Exception 2dly The obtainer of the Decreet was in pessima fide because imediatly after the obtaining it it was Suspended and the Tacks-man was able to instruct that there was no Duties resting at that time and though Protestations were obtained yet the Suspension was never Discust against the Tacks-man The Lords Repelled this Defense also The Defender further alleadged that albeit he would make no opposition against the first Tack yet the second Tack could have no effect against him because before it was cled with Possession Robert Menzies setter thereof was denuded in favours of Birthwood from whom the Defender has Right and it is unquestionable that a Tack not attaining Possession is no real Right and that a singular Successor Infeft before Possession on it will exclude it 2dly As the Tack was not cled with Possession so Robert who set it had no real Right in his Person when he set it but only the Decreet Arbitral The Pursuer answered to the first that he opponed his new Tack which contained not only a Ratification of the old Tack but a new Tack de presenti for five merk and so was like a Charter by a Superiour with a novo damus whereby the Tacks-man might ascribe his Possession to any of the Tacks he pleased and if this Tack had born expresly a Reservation of the Fathers Liferent for eighty pounds yearly it would have been unquestionably a valide Tack from the Date and Payment to the Father by the Reservation would be by vertue of the new Tack as well as of the old So likewise the Tacks-man might Renunce the old Tack and retain the new or if the new Tack had been taken without mention of the Old the same would have been cled with Possession albeit it could not effectually exclude the payment of fourscore pounds to the Father during his life as having a better Right by the Reservation As to the second Alleadgeance albeit Robert who set the Tack was not Infeft when he set it yet Robert being thereafter Infeft his Right accresced to the Tacks-man in the same manner as if he had been Infeft before fictione juris It was answered to the first that the new Tack did not bear a Reservation of the old but the Tacks-man having two Tacks in his Person at once although he might quite either of them or declare to which of them he ascribed his Possession before the interest of any other Party yet not having so done he must be holden to Possess by the first because he continued to pay the Tack-duty of the first and never payed the Tack-duty of the second till the Setter was Denuded To this it was answered that the payment to the Liferenter who had a better Right did not import the Possessing by the first Tack and the Tacks-man needed not declare his option till he was put to it but Law presumes that he Possessed by that Right which was most convenient for him As to this Point the Lords found that the Tacks-man might ascribe his Possession to either of the Tacks he pleased both of them being set for a distinct Tack-duty and that agibatur by the second Tack that the Fathers Liferent should be Reserved As to the other Point The Defender alleadged that the Infeftment of Robert who set the Tack could not accresce to the Tacks-man because the same day Robert was Infeft he was Denuded in favours of Birthwood and he Infeft so that it must be presumed that he was only Infeft to that effect that Birthwoods Right might be valide 2dly It was offered to be proven that Birthwood procured Roberts Infeftment by his own Means and so it cannot accresce to any other in his prejudice It was answered that whoever procured the Infeftment of the Common Author the fiction of Law did draw it back to all the Deeds done by that Author that might arise from that Infeftment which cannot be divided or altered by the Acting or Declaration of either or both Parties Which the Lords found Relevant and found the Infeftment did accresce to the Tacks-man in the first place whose Tack was prior with absolute Warrandice Lord Balmerino contra Hamiltoun of Little Prestoun June 22. 1671. Wishart in Leith did grant Infeftment of an Annualrent of fourty pounds yearly out of two Tenements in Leith in any part of them Which Annualrent by progress belonged to Mr. Iohn Adamson and after the Constitution of the Annualrent the two Tenements were Transmitted to different Proprietars and now the one belongs to the Lord Balmerino and the other to Hamiltoun of Little Prestoun the Annualrenter did only insist against Balmerino's Tenement and upon an old Decreet of Poinding of the Ground of that Tenement hath continued in Possession and Distressed Balmerino Who having Suspended on this Ground that the Annualrent being out of two Tenements whereof he had but the one he could be only lyable but for the one half The Lords found that the Annualrenter might Distress any of the Tenements for the whole but reserved to Balmerino his Relief as accords Whereupon Balmerino now pursues Little Prestoun to Repay him the half of the Annualrent for which he was Distressed because he having payed did liberate Little Prestoun of the Annualrent which affected both Tenements they being now in different Heretors hands behoved to infer a proportional Relief as is ordinar in all Annualrents Constitute upon any Barony or Tenement which thereafter comes to be divided The Defender alleadged Absolvitor because he had bruiked his Tenement much more then fourty years before this Pursuit free of any such Annualrent and therefore had prescribed the freedom thereof The Pursuer answered that Prescription was hindered by the Annualrenters Possession in getting his Annualrent which though it had been but by a Personal Obligement it would have preserved his Right intire to all effects in the same manner as payment by a principal Debitor hinders the Cautioners Bond to Prescribe though he were free thereof for fourty years It was answered that albeit there might be ground for the Reply where the Annualrent is Constitute out of one Barony or Tenement whereon Infeftment may reach the whole yet it cannot hold in this case where the Annualrent is Constitute upon two distinct Tenements and where there behoved Seasing to be taken upon both of them and if omitted upon one that would be free The Lords found that payment of the Annualrent out of any of the Tenements saved Prescription as to both Leslies contra Alexander Iaffray Eodem die LEslies pursues Alexander Iaffray and others for producing of Writs and counting anent a Wodset Right as being satisfied by intromission and that as appearand Heirs ad deliberâ—â— dum Wherein the Lords refused to Sustain the Summons for Compt and Reckoning but only for Exhibition albeit there was a
contra Strangers of Oâ—â—end but the Kings 10th part and Admirals 15th part were not allowed A Pryze Ship of Hamburgh taken as carrying Counterband-Goods to the Daâ—es after Acts of Hostility betwixt the King and them was liberate because she was taken before the Proclamation of the War against the Danes but the Captain was found to have probable Ground to Seaze and was found only lyable for what profite he had made of the Ship and Goods unless he had been thâ— culpa by the spoiling or mis-appryzing thereof February 25. 1668. Merchants of Hamburgh contra Captain Disâ—ingtoun A Pryze Ship belonging to the Sweds was found Warâ—antably taken because she was Navigat with Hollanders the Kings Enemies contrary the Kings Proclamaâ—ion of War albeit they hâ—d a pass conform to the Swedish Treaty wherein it is permitted to the Sweds to make use of Hollanders as Masters he becoming a sworn Burges of their Town without mention of what Nation the remnant company mighâ— be of February 25. 1668. Owners of the Ship called the Castle of Riga contra Captain Seaâ—oun A Prize Ship was found justly adjudged because a great part of the company were Hollanders in respect of the Kings Proclamation of War ordaining Ships to be taken that had in them any number of men or goods belonging to Enemies albeit the Ship was a Swedish Ship and had a pass conform to the Swedish Treaty which bear that such a pass being found there should be no further inquiry in men or goods â—isi gravis suspitiâ—o subsit seing that Treaty bear a liberty to the Sâ—eds to have a Hollands Master becoming a sworn Burges of any Town of Sweden and had no such priviledge for the mariners Iune 30. 1668. Paterson contra Captain Anderson A prize Ship was found justly taken being insisted against on several grounds as having a number of the Kings Enemies the Hollanders Sailers being only proven to be three and the company nine as having been two years with the Kings Enemies Merchandizing but not in the War and by having a small parcel of Tar as Counterband in the same Voyage upon all joyntly the Lords declared but not upon any point alone Iuly 9. 1668. Captaâ—â— Allan contra Parkman In prize Ships competent and omitted as a particular custom of Scotland was not sustained against the strangers but they were found to have the benefite of the Law of Nations Iune 15. 1669. Loyson contra Laird of Ludâ—uharâ— and Captain Wilson A prize Ship declared as carrying Counterband having on Board Oak cutted at three foot and an half for making Barrels in respect the Admirals Commission bear Clapboard as counterband though Testimonies from the Admiralities of England Holland and Flanders were produced that such Timber was not accompted counterband a great number of the Lords being of a contrary judgement Iune 29. 1669. Captain contra A prize Ship being in question which being alleadged to be fraughted from Norway to London with Timber by the Kings proclamation warranding Ships even of his Enemies Countreys to be imployed for bringing Timber for the Rebuilding of London they getting certificates and passes from the Duke of York the Ship having on Board 1500. Dails not belonging to the London Merchants the same was found sufficient to confiâ—cate the Ship and these Dails but not to confiscate the Cargo belonging to the English Merchands if he could produce a pass conform to the Proclamation and the Kings Letter bearing that he was sufficiently informed that this Ship had a valide pass and therefore ordering her to be restored was not found Relevant to liberate the Ship or Merchants Cargo without production of the pass but the Letter was understood to be â—alvo jure not proceeding upon the hearing of parties albeit the Duke of York did asset that he had formerly given a pass to that Ship Iuly 13. 1669. Captain Wood contra Neâ—lson here the Skippers Testimony alonâ— was received to prove against the Owners A prize Ship being adjudged by the Admiral and the Decreet being quarrelled because the Skipper had a pass declaring the Ship and Goods wholly belonging to the Sweds the Kings Allys the pass was conform to the Swedish Treaty which clears expresly that where such passes are â—eqâ—id amplâ—s exigatur in bonâ— aut homines nullo modo inquiratur The adjudication was sustained in respect that the pass by the oath of the Skipper and company was found to be a contrivance and there was no sufficient probation that the Ship and Goods belonged to the Sweds and that the Treaty bears si qua gravis suspâ—â—io subsit that seazure may be made Iune 29. 1671. Burrow contra Captain 〈◊〉 A PVPILS person was found to be keeped by her Mother who was Widow till her age of eleven years and then by a Friend of her Fathers side but not by the Tutor who was nearest to succeed February 6. 1666 Laird of Dâ—ry contra Relict and Daughter of his Brother RATIHABITION Vide Clause Ianuary 9. 1663. Mason contra Hunter RECOGNITION committed by a Defunct's alienation was not stopped upon the priviledge of Minority quo minor non tenetur placitare c. February 19. 1662. Lady Carnagy contra a Lord Cranburn Recognition was not clided because as importing ingratitude which is criminal it was purged with the death of the Committer but was sustained against his Successor Ibidem Recognition was found to be incurred by alienation of Ward Lands albeit the Seasine taken was without the Acquirers Mandat subscribed but by a general Mandat out of the Chancellary seing it was taken by his Grand-father giver of the Alienation and albeit the Disposition bear only â—ailing of the Disponers Heirs of his Body seing it had a Warrand for seasing this party de preseâ—ti nominatim nor was it reduced upon Minority to annul the Seasine and shun the Recognition Ianuary 30. 1663. Inter eosdem Recognition was incurred by giving an Infeftment base to a Grand child not being then alioqui successuruâ— of Ward Lands though Taxed Ward and though granted to Heirs and Assigneys which was only understood that the Disposion Charter or Precept before Seasine might be assigned but not after nor was it respected that the Seasine as not Confirmed was null nor that it implyed a tacit condition that the Superior consented nor that the Giver was an illiterat person and the case dubious here the case was favourable for the Donatar who was the Disponers eldest Daughter and who was past by and the second Daughters Heirs though strangers were preferred in all February 5. 1663. Inter eosdem A Donatar of Recognition granting a Precept to a Vassal in the Lands falling in Recognition acknowledging that Vassals predecessors Right and his own in the ordinary Terms of a precept of clare constat albeit the precept did also bear in obedience of Precepts out of the Chancellary yet the same with the Seasine following thereon was found to exclude the Donatat and all deriving Right from him thereafter Iune
death-bed was sustained at the instance of the Creditors of the apparent Heir on this interest that the debts of the apparent Heir might affect the Estate disponed if the Disposition were Reduced February 16. 1669. Creditors of my Lord Balmerino and Lord Cowper contra Lady Cowper Reduction was found necessary to take away a Decreet of Double poynding and that a second Suspension of Doubleâ—poynding â—aised by a party who compeared not in the first instance was not sufficient though in Decreets in absence Suspension without Reduction is sufficient February 4. 1670. Watson contra Sympson REGALITIES cannot be prejudged by the Bloodwits or Amerciaments of the Iustices of Peace within the Regality but that â—uch only belong to the Lord of â—egality as was â—ound Iuly 22. 1664. Earl of Sutherland contra Mâ—â—tosh of Câ—nadge Regalities having Chappel and Chancellary general services need not be retoured to the Kings Chancellary Ianuary 19. 1667. Reid contra RELIEF amongst persons bound conjunctly and severally was foâ—nd to follow where one is distrest for all though there be no clause of relies exprest Relict of the Minister of Ednem contra Laird of Wedderburn The like Iune 19. 1662. Wallace contra Forbes The like Iune 28. 1665. Montâ—ith contra Anderson Vide Clause Ibidem A RELICT was found neither to have share of stock nor Terce of Annualrent of a sum bearing Annualrent without Infeftment Iune 24. 1663. Sâ—ryâ—zeour contra Murrayes A Relicts third of moveables was found not to be abated by the Husbands heretable debts as bearing annualrent whether they exceeded the heretable sums due to the Defunct or not Iuly 19. 1664. Inter eosdem REMOVINâ— cannot be stopped by alleadging the Deâ—ender is Tennent by payment of Mails and Duties to such a man who is not warned unless it be alleadged he hath infeftment or Tacks for Terms to run after the warning but tacite relocation sufficeth not Ianuary 30. 1663. Rlâ—â—art contra Removing was sustained on a warning on 40. dayes albeit the party was out oâ—f the Countrey being now cited upon 60. dayes without necessity to warn him by Letters of Supplement on 60. dayes February 20. 1666. Mâ—â—raâ—r contra Crichtoun Removing was not sustained by a warning made by the Feear before the Liferenters death no not to take effect at the next Whitsonday without a new warning Iune 30. 1669. Agnew contra Tennents of Dronlaw RENVNCIATION to be heir was admitted and a Decreet thereupon reduced obtained against the Renuncer as charged to Enter heir albeit they had raised no Reduction thereof intra annos utiles because the Decreet was obtained at the Vncles instance in her inâ—ancy and not insisted in within the anni utiles Iuly 17. 1661. Relict of Fleming contra Forrester A Renunciation of a Feâ— was sustained to liberate the Vassal from the Feâ— duty albeit the Feu was constitute by a mutual Contract obliging the Feear and his heirs to pay the Feu duty yearly â—eing there was a Back-bond of the same date that the Feuar might renunce when he pleased February 12. 1669. Brown contra Sibbald Renunciation of all Right and interest was found only to extend to all right the Renuncer had and not to any future right or rights to which the Renuncer might succeed unless it had been mentioned Iuly 27. 1671. Baillie contra Baillie REPARATION of a Kirk was found in no part to affect the Titular of the Teinds but the Heretors of the Land only Ianuary 16. 1663. Relict of the Minister of Ednem contra Laird of Wedderburn Reparation of Manses done by the Incumbents before 1649. was found not to burden the Heretors for tâ—e value of 1000. merks conform to the Act 1649 renewed 1661. but only for 500. merks which was the Quota before these Acts and that not against singular Successors Ianuary 8. 1670. Charters contra Parochioners of Currie REPROBATVRES were sustained though not protested for at the Examination of the Witnesses against whose Testimonies the Reprobature was now used being protested for before Sentence Iuly 30. 1668. Laird of Milntoun contra Lady Milntoun Reprobature was not admitted to be added after a Reduction was filled up and discust in a Devorce but reserved to a special Action of Reprobature February 25. 1669. Inter eosdem Reprobature for annulling a Decreet of Divorce of the Commissars was sustained at the instance of one who had bought the Liferent from the Husband and which would fall back to the Wiâ—e by the Divorce who compeaâ—ing before the Commissars to object against the Witnesses and interrogate thâ—m was not admitted and having in a Reduction before the Lords obtained the Witnesses to be re-examined their own Testimonies of corruption were not admitted to enerâ—ate their former Testimonies but Reprobatures were reserved and being insisted in it was not found relevant that they were viles pauperes the principal cause being Adultery which is a latent crime neither that they were infamous by common report unless they had been declared infamous by a Iudge or found culpable of a Crime or Fact that the Law declares to infer infamy Ianuary 31. 1671. Inter eosdem Reprobaturâ— were found relevant being libelled upon instructing or prompting of Witnesses without necessity to alleadge that the Witnesses undertook or deponed conform and that in odium corrumpentis without inferring any blemish upon the Witnesses of prompted who consented not or swoar falsely Ibidem Reprobatures were found relevant upon libelling of corrupting of Witnesses upon giving or promising of good deeds more than would be suitable for their Charges Ibidem Reprobatures upon corrupting of Witnesses by giving or promising bribes or prompting Witnesses to depone was â—ound only Probable by writ or oath of the parties who adduced the Witnesses after Decreet and not by Witnesses unless the Reprobatures had been pursued before Decreet proceeding upon the Testimonies of the Witnesses quarrelled this was stopped till the further hearing and was recalled and Witnesses above exception were found competent whether before or after Sentence and the Witnesses were ordained to be condescended upon The first Interlocutor was the 14. of Iuly 1671. and the second the 20th of February 1672. Inter eosdem REQVISITION of a sum was sustained though it mentioned not the Procutatory produced seing it bear that the same was known to the Nottar and Witnesses and thereupon the Defunct party did appryze Ianuary 10. 1665. Steuart contra Steuarts A Requisition was sustained though it bear not a Procuratory produced seing it was not called for then and is now produced and the Procurator shew Writs whereupon the Requisition was to be made as the Instrument bears Iâ—ne 28. 1671. Hume contra Lord Iustice Clerk A RETOVR was found reduceable without the solemnitie of a Summons of Error in Latine calling the Inquest seing the point in question was that point of the Brieve that the parties Grand-father died last Vest and Seased whereas the Seasine of an Vncle and Father were now produced which inferred â—o Error in the Inquest
lay so much marked upon the Precept received in name of Composition Earl of Lauderdail contra Tennents of Swintoun Ianuary 7. 1662. EArl of Lauderdail as having Right to the Forefaulture of the Barony of Swintoun pursues the Tennents for Maills and Duties George Livingstou one of them alleadges that he must be assoilzied from one Years Dutie because he offers him to prove That it is the Custom of the Barony of Swintoun at least of a distinct Quarter thereof That the Tennents do always at their entry pay half a years Rent and are free of Rent at the Term they remove and so do all a long pay a Year at the least half a Year before the hand and subsumes that he has payed accordingly to Swintoun himself for a Terms Maill due for the Crop which is after the pursuers Right The Pursuer alleadged non Relâ—â—at against him a singular Successor or against the KING his Author because that Partie that hath Right to the Land hath Right to the Fruits and so to the Rents which is payable for the fruits which were extent upon the Land or growand after that Parties Rightâ— and no payment before the hand can liberat the Possessor from the Pursuite of a Singular Successor Therefore it hath been frequently found that payment before the hand is not Relevant against an Appryzer yea even against an Arrester so that the KING and his Donatar since their Right was established and known cannot be excluded by payment before the hand to a partie who had no Right to the Land or to the Fruits that Year otherwayes both the KING and Creditors might be defrauded by Fore-maills or by Tacks appointing the Fore-mail to be payed the first Term whatsoever length the Tack be Secondly Any such alleadgances were only probable scripto vel juramenio The Defender answered that the Case here is not like the Fore-maills instanced because every Year is payed within it self and so the first Year the half at the beginning thereof and the half at the middle thereof and subsequent Years conform which must be sufficient to the Tennent otherways Tennents paying at Whitsonday and Martinmess should not be liberat because the whole Year is not run out or a Tennent paying his Ferms at Candlesmass should not be secure against Singular Possessors for the profit of Grasse thereof till Whitsonday The Lords found the Defense Relevant and the Custome of the Barony to be proven by Witnesses and likewise the payment of the Dutie in so far as in Victual and also for the money not exceeding an hundred pounds Termlie Iames Stewart contra Feuars of Aberbadenoch Ianuary 8. 1662. JAmes Stewart as being Heritably infeft in the Milne of Aberbadenoch pursues the Feuars of the Barony for abstract Multures of their Corns growing within the Barony or which tholed Fire and Water within the same The Defenders alleadged absolvitor because they are Infeft in their Lands feu of the KING long before the Pursuers Infeftment which Infeftment bears cum Molendiuis Multuris in the tenendas The Pursuer Replyed that albeit that Clause were sufficient Liberation amongst Subjects yet this is a Milne of the KINGS Propertie whereunto Thirlage is sufficently Constitute by long Possession of coming to the Milne and paying in Towns Multures and Services as is Craig's opinion and hath been so found by the Lords February 5. one thousand six hundred thirty five Dog contra Mushet The Defender answered That albeit Thirlage to the KINGS Milnes may be Constitute without Writ yet cannot take away an expresse Exemption granted by the KING The Lords Repelled the Defense in respect of the Reply because they thoughâ— that this Clause being but in the tenendas past of Course and when Sigâ—aâ—â—â—â— are past the KINGS hand or Exchequar's they bear only tenâ—ndas c. without expressing the Particular Clause which is afterwards extended at the Seals The Defenders alleadged further absolvitor from the Multure of the Teind because that was not Thirled nor had the KING any Right thereto when he granted the Infeftment of the Milne The Pursuer Replyed the Defense ought to be Repelled in respect of the long Possession in Molâ—ndo Regio because the Defenders and their Tennents past fourty years payed Multures of all their Corns promiscuously without exception of Teind likeas there are several Decreets produced for abstract Multures of all the Corns without exception The Defender answered That the Reply non Relevat for albeit long Possession may make a Thirlage of the KINGS own Baronie yet that cannot be extended to other mens Rights of their Lands and Teinds which cannot be Thirled without their own Consent or Decreets against themselves called nor do the Decreets bear Teind per expressum The Lords found the Defeuse Relevant notwithstanding of the Reply except such Teinds that thole Fire and Water within the Barony and likewise sâ—staiâ—â—ed the Defense for the Corns eâ—ten by the Defenders upon the Ground in the Labouring c. Earl of Murray contra Laird of Grant January 9. 1662. THE Earl of Murray Pursues the Laird of Grant to Re-dispone him certain Lands which the Earls Father had Disponed to the Defender and had taken his Back-bond that if the Earls Friends should find it prejudicial to the Earl then upon payment of 2800. merks precisely at Whitsonday he should Re-dispone ita est the Earls Friends by a Testificat produced found the Bargain to his loss therefore he offered the sum to the Defender in his own House which he refused and now offers to Re-produce it cum omni causa The Defender alleadged Absolvitor First Because the Back-bond is pactum de retro vendendo And so a Reversion which is strictissimi juris and not to be extended beyond the express Terms thereof which are that if Iames Earl of Murray should re-pay the Sum at Whitsonday 1653. precisely the Defender should Re-dispone But there is no mention of the Earlsâ— Heirs and so cannot extend to this Earl though he were Heir as he was not served Heir the time of the offer The Pursuer answered that when Reversions are meaned to be Personal and not to be extended to Heirs they do bear That if the Reverser in his own time or at any time during his life c. or some such Expression but there is nothing such here and the Pursuer was Retoured Heir to his Father who died shortly before the Term of Redemption and having used all Diligence he cannot be excluded by such an accident which he could not help The Lords Repelled both the Defenses albeit there was only an offer without Consignation seeing the Back-bond did not bear Premonition or Consignation but only payment which the Pursuer now offered Baird contra Baird Eodem die BAird in Saint Andrews having taken the Gift of his Brothers Escheat upon his Adultery Pursues Declarator thereupon The Defender alleadged no Processes till the Crime were Cognosced in the Criminal Court or at least he were declared Fugitive and
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
ordinar and known but here the Casualities belonging to the Bailliâ— proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ— the Lord Lauderdales Grand-fatherâ— in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâ—tion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â— years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
Ratification should have the force of a publick Law and not be derogat by the Act salvo jure It was answered for the Defender that in Prescriptione longissimi temporis non requiritur tempus utile sed continuum In consideration whereof the time of the said Presciption is made so long and therefore captivity absence reipublicae causa want of Jurisdiction or the like are not respected 2dly Thirlstone valebat agere because he might have Reduced the Queens Infeftment of Fee or declared his own Right of Fee to be effectual after her death And as to the late Act of Parliament albeit it does exclude the Act salvo jure yet that is parte inaudita and upon the impetration of a Party suo periculo but the Parliament have never assumed power to take away the privat Rights of Subjects except upon another or better Right otherwayes no man in Scotland can call any thing his own but a Confirmation in Parliament with such a clause surreptitiously obtained shall take away the Unquestionable Right of any other It was answered for the Pursuer that the Parliament had not incroached upon the just Right of any other but had only restored the Pursuer to his Grand Fathers Right and seing there is no question but that Right was prior and better than the Queens and the Defenders and was in no hazard but as to the point of Prescription that being a rigorous Statute the Parliament might well excuse the Pursuer for not pursuing the King and Queen but rather patiently to abide their pleasure till they were denuded in favours of privat Parties It was answered for the Defender that all our privat Rights especially of Property are founded upon positive Law and there is none stronger then the Right of Prescription and therefore if the Parliament can take that away as to one Person and not generally they may annul the Right of any privat Person whatsomever The Lords were unwilling to decide in the whole points of the Debate but did in the first place consider the Right of the Parties without the Act of Parliament in favours of the Queen or the late Act in favours of the Earl and in the point of Right they repelled the Defense of Prescription in respect of the Duply of Swintouns interruption which they found to accresce to the Pursuer cujus jure utebatur and found that before the Queens death the Prescription could not run in respect of the Queens Infeftment of Liâ—erent consented to by Thirlstoun which would exclude him from any Action for attaining Possession and they found that he was not oblidged to use Declarator or Reduction which might be competent in the Cases of Distress or the Rights of Wifes or any other Right which yet do alwayes exclude Prescription till Action may be founded thereupon that may attain Possession Thomas Millar contra Howison Iune 5. 1666. THomas Millar having pursued the Tennents of one Bailie his Debitor for making forthcoming their Duties arrested in their hands Compears Howison and produces a Disposition and Infeftments from Baillie of the Tenements prior to the Arrestment and craves to be preferred It was answered for Millar that Howisons Disposition was null as being in fraudem Creditorum against the Act of Parliament being granted after the contracting of Millars Debt and albeit the narrative of the Disposition bears causes onerous yet he offered to prove by Howisons Oath that it was not for causes onerous at least equivalent to the worth of the Land which was found relevant and Howison having deponed that his Disposition was granted for a Sum of 300. merks addebted to himself and the Sum of 1600. merks adebted to Iohn Burd for which he was Cautioner for Baillie the Disponer At the advysing of the Cause It was alleadged that the Disposition nor the Disponers Oath could not sufficiently instruct the cause onerous seing the Oath did not bear that there was a price made but only that there was no Reversion nor promise of Redemption granted â— yet the Disposition was truely in Trust which ofttimes is tacit as being the meaning of the Parties and is not expresse by Reversion or Back-bond so that if Baillie or this Arrester would pay these Sums Howison could have no further Interest It was answered that the points referred to Howisons Oath were denyed and that he was not oblidged to keep the Bonds but might destroy them as being satisfied The Lords found that as to Howisons own Bond he needed not instruct the same but as to Burds Bond they found that he ought to instruct it by some adminicles further then his own Oath that the Debt was and was payed by him in respect his Oath bore not a price made and that he was Vncle to Baillie the Disponer Mr. Alexander Nisbit contra Eodem die MR. Alexander Nisbit as Assigney to a Sum pursues the Debitor for payment compears the Arrester who had arrested it in the Debitors hand for a Debt due to him by the Cedent and whereupon he had obtained Decreet before the Sheriff of Berwick It was alleadged for the Assigney that the Decreet was null because the principal Debitor was not called in the Decreet for making forthcoming or at least at that time he lived not within that Jurisdiction It was answered that albeit the Arrester had no more but his naked Arrestment he might compear for his Interest and crave preference to the Assigney whose Intimation was posterior It was answered he could not be pursued hoc ordineâ— because he whose Money was arrested was not yet called viz. The Assigneys Cedent who is the Arresters principal Debitor who if he were called might alleadge that the Debt whereupon the Arrestment proceeded was satisfied which was not competent to the Assigney being jus tertij to him The Lords found the Arrester might compear in this Process without calling his Debitor but they found that the Assigney might either alleadge payment in name of his Cedent or if he craved a time to intimate to his Cedent they would superceed to extract till that time that the Cedent might defend himself Earl of Cassils contra Sir Andrew Agnew Iune 6. 1666. THe Earl of Cassils as Superior of some Lands holden of him by Iohn Gardener obtained Declarator of his Liferent Escheat and that a Gift of the said Liferent granted by the said Earl to the said Iohn was null in so far as it contained a Clause irritant that if Iohn Gardener should give any Right of the Lands to any of the name of Agnew the Gift should be null ipso facto whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant by Iohn Gardeners giving Right to Sir Andrew Agnew and now insists for the Mails and Duties since that Declarator It was alleadged that the said Earl had accepted the Feu Dutie of several Years since the said Declarator and thereby had tacitly past from the Declarator and could not seek both the Feu-dutie and also the whole