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money_n account_n creditor_n debtor_n 1,494 5 12.7915 5 false
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A53591 Overtures for correcting and amending the laws humbly presented to His Grace the Duke of Queensberry, His Majesties High Commissioner, and the Honourable court of Parliament / by a well-wisher to his countrey. J. F. 1700 (1700) Wing O644; ESTC R4508 12,170 14

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publick Edicts that the same is in their hands and was ready to be lent upon Security 4. That Tutors Testamentars are not to be lyable for Omissions and that it shall be leisum for Tutors and Curators to accept with that Quality and that the Judge admit the same unless the nearest of Kin or some other person interested offer themselves or others to undertake the office simply without any such Qualification 5. That where there are more Tutors and Curators than one and if any one of them act or intromet he is first to be conveened and discust before the rest be lyable but so as if he be not sound solvent The Pupil shall have recourse against the rest for the Expenses he has been at in pursuing and discussing the said insolvent person 6. That all Curators named Depon that they have not used any means or made any desire or motion to the Pupil or any other for their being elected and if they refuse to Depone That they be rejected 7. That Minors be not allowed to make Testaments without consent of their Curators But that Legacies left by them expressing the Cause be allowed according as the same shall be found just by the Judge Ordinar 8. That there be no Action sustained whither Petitory or Possessory against a Minor as to Lands or Heretable Rights wherein his Father was by vertue of legal Titles in possession uninterrupted Year and Day 9. That no Interdictions be sustained but such as are after Cognition of the Cause thereof taken by the Judge Ordinar and that it shall be leisum for any near Relation or persons interested in the Preservation of any persons Estate To apply to the Lords of Session for cognoscing the Defender to be Prodigus and to be interdicted accordingly and that the same shall not be taken off but by the sentence of a Judge causâ cognitâ Anent Obligations and Contracts 10. That where by Contracts betwixt two parties there is sometimes Clauses conceived in favours of third parties That it shall be in the power of the parties Contracters to nullifie or discharge these Clauses without consent of that third party unless the Contract be in his hand 2. That no Verbal Conditions Promises or Pactions shall be Probable by Witnesses being lyable to Mistake and uncertain as to the design and meaning of the Promiser 3. That the Depositation of Writs or the Conditions of granting thereof shall not be Probable by Witnesses or the Oath of the Depositar or Haver but only by Writ or Oath of the Granter because that is in effect to evacuat Writs by Witnesses or to make up the same thereby which is to make Witnesses as valid and effectual a mean of Probation as Writ 4. That albeit by our Law Interest be not due for Money without Paction until the Debitor be charged and denunced which is needless Trouble and very Expensive and may tend to the Prejudice of Creditors if he should happen to be denunced that therefore after simple requisition of the Money due by a liquid Bond Ticket Subscribed Accompt or the like Annualrent shall be due even as if there were an express Paction for Payment thereof seing by the Requisition the Debitor is in mora Anent Infeftments and Real Rights of Lands 1. That where any Person stands Infeft in Lands as having purchast the same himself or as Heir to some of his Predecessors there shall be no more requisite for establishing the Right thereof in the person of his Heir who is to succeed him in the saids Lands but only a general Service before the Sheriff of the Shire where the Lands ly cognoscing the Pursuer of the Brieve to be General Heir and of Line or such an Heir as is mentioned in the Brieve and this being Registrat and Retoured shall be a sufficient Right to the person served without any further Progress or Solemnity in Law conform to the Law of France and many other Nations 2. That where there is Infeftment taken in name of the persons first institute and to these nominatim substitute that these substitute shall not be put to further trouble for stating the Rights in their persons failing these who are institute or substitute before them but only cognosced by an Inquest that these persons are failied and that he is next substitute and that the same being cognosced shall be a valid Right without any farther Anent Superiorities and the Casualities thereof 1. That the King receive all singular Successors gratis seing the ground of Law for paying Compositions is that the Superior receives a Stranger in place of his Vassal and that there is no Subject can be repute a Stranger to the King and so there ought nothing to be exacted for his Entry and the exacting thereof is a Novelty not being so from the beginning 2. Seing the Superior gets all his Duties and Casualities from the Vassal or his Fee as well when not Entered as when he is that therefore there be no Nonentry esteemed in Law unless the Vassal be contumacious and convicted of Contempt against his Superior and that from and after a Decreet of Non-entry to be recovered against him he always being Major 3. That the Value of Vassals Marriages be only estimat and proportional to the Value of the Fee held by them in Ward and wherein no regard is to be had to their other Estate Personal or Real 4. Or rather that the Wards be turned into Feu and an estimat put on the Marriage by which the captious way of catching Vassals by making offers of Matches to them will be remeeded and this Estimat put upon their Marriages to be either according to their Charter extant or according to the present Valuation of their Land which may be either done by Taxing the Marriage or making the Feu-duty more in lieu of all 5. That no Escheats Liferent or Movable fall or be gifted to the prejudice of lawful Creditors and that they have no place untill all the Rebels Debts be payed seing by the Law of all other Nations it is a received Maxime that Ita bona debent transire ad fiscum qualia fuerunt apud delinquentem cum omnibus oneribus debitis Anent Fiars and Liferenters of Lands and Sume and the Courtesie due to Husbands 1. That the last Termination being of the Heirs of any who are institute infer that person to be the Fiar 2. That the Terce extend to Lands and Teinds and all that is Heretable and Bonds bearing Annualrent seing the Relicts have no Third thereof and therefore ought to have a Liferent-Terce where there is no Contract of Marriage 3. That Superiors receive Liferenters gratis without any Composition seing there is no change of Vassals and that they ought not to be put to the Trouble and Expense of Adjudging upon the Obligment in the Contract of Marriage 4. That Tochers and Joyntures be both due tho' the Marriage subsists not Year and Day if it be Consummat by going to Bed
and that the Husband have the Courtesie of all Lands wherein the Wife either was or might have been Infeft if the Marriage be Consummat as said is Of Teinds Teinds being Jewish and a part of the Levitical Law and of no Divine Right now under the Gospel that therefore they be Consolidat with the Stock and the Proprietar or Tacks-man put to pursue for the Price that shall be appointed to be payed therefore and that the Price of the Teinds be first applyed for buying a Maintainance for the Minister whether of Land or Annualrent out of the Property which in all possible Events may be a Competency and if in after times it shall be necessar to augment the same that it be done by a personal Pole of all within the Paroch to be casten upon them yearly Of Tacks 1. That Tacks set at the usual and ordinary Avail of Lands in that place or at which these were formerly set shall be valid against Wards Escheats Nonentries Forfaultures and all other Casualities of Superiority 2. That Tacks set be inviolably observed that Tennents may be thereby encouraged to Plant and Inclose Meliorat and Cultivat the Land and that they Enjoy the same peaceably during all the years thereof providing always that if the Master for his own necessary use and utility shall think fit either to Labour or Inclose the same himself either in whole or in part that it shall be leisum for him to do the same notwithstanding of the said Tack he always refounding to the said Tennent what Grassum or other Gratification he has got for making the said Tack proportionally and effeiring to the Grassum and number of Years he was to enjoy the same or if there was no Grassum the Master paying the Damnages that shall be found the Tennent has sustained thorow his being removed from his Possession as said is Of Transmission of Rights and also of the Extinction thereof 1. That Superiors be bound to accept of Resignations in favorem and that an Instrument of Refusal shall be as to all intents equivalent to an Charter and Seasin by the said Superior unless at the taking of the said Instrument he give the Reason of his Resusal and instruct the same before the Judge Ordinar within Year and Day to whom it is remitted to judge both the Relevancy and Verity thereof 2. That Recognitions be abrogat at least as to the King's Vassals seing all Subjects are alike as to him and it imports not which of his Majesties Subjects be his Vassals in any particular Fee 3. That there be no Recognition in Taxt-Ward providing the Feu-duty payable out thereof be effeir●nd to the Taxt-duty and Marriage if the whole be feued and proportionally if a part In which ca●e the Superior can pretend no Damnage or Loss Anent Prescription and Interruption 1. That there be a difference made as to the Prescription of Moveable and Heretable Rights and that the same be shortned in both 2. Seing the first registrat Seasin is repute a publick Infeftment that therefore there be no longer any defence sustained upon the benefite of a Possessory Judgement the first registrat Seasin being equal to a publick Infeftment since the Date of that Act. 3. ●eing in Prescriptions both Titulus and bona fides are requisite that therefore one of the Parties privat knowledge of the Right of another albeit not compleat is that he had a Disposition but no Infeftment put him in mala fide 4. That all legal Interruptions should be against the persons themselves and not Co-debitors And that Diligence against one Co-obligant should not preclude the other of the defence of Prescription 5. That albeit Inhibitions be only negative Rights yet the extent of them is become so exorbitant that they are of far more Force and Effect nor an positive Right by Disposition And also in respect it is yet dubious from what time Inhibitions take effect whether from the Date of the Execution against the Party or at the Mercat Cross of the Jurisdictions where the persons dwell or the Lands ly or that it shall only take effect from the Date of the Registration which seems to be more just seing the Leidges are there only certiorat the executing at Crosses being now a meer Formality passing without the nottice of any so that the only mean of knowing who is Inhibite is by searching the Registers Therefore that it be enacted ●hat in all time coming Inhibitions being raised and execute against the Party personally and registrat either in the general Register or Books of the Jurisdiction wherein he dwells within 48 Hours thereafter shall be valid from the Date of the said Registration without any further Solemnity The reason why the Re●istration may be within such short time is because the Execution is only to be against the Party personally without any further Execution at Mercat-Crosses where the Debitors Lands might ly so that it took a considerable time before it could be done but here where there is nothing requisite but a personal Execution it may be within 24 Hours carried to the Register or Jurisdiction where the person inhibite dwells and insert in his Register or Minut-Book thereof 6. Item That Inhibitions run from the Date of the Registration thereof and not from the date of the Deed that is done contrair thereto 7. That Libels for House-Mails Merchants-Accompts Servants-Fees and the like shall not be relevant unless they also bear that they are resting owing and that the same be only probable scripto if the Debitor be dead and scripto vel juramento if living and that therefore Merchants take Writ for what they furnish bearing the Quantity and Price thereof Of Voluntar Assignations and Legal Arrestments 1. That where an Assignation is purchased for Money or other good Deed from a person that is not of Relation or such a person as would be thought not to have gifted the same in such a case according to the common Law the Assigney shall recover no more from the Debitor than he truly payed or his Fact or Deed done by him can be estimat worth by the Judge Ordinar and this to preveen discourage the taking and buying unnecessarly the Debts resting by others 2. That where the principal Writ assigned is delivered at the time it shall be preferred to any other Assignation tho' first intimat the said Writ being probable and Possession compleating the Right 3. That neither Inhibitions nor Arrestments pass of course but by a special Deliverance of the Lords in presence or upon a Report and upon instructing sufficiently grounds for founding thereof and that the Inhibition being only a personal Inhibition that the Debitor put not his Estate in a worse condition than it is at the time of the serving thereof That therefore it subsist and stand good only for such a Number of years as the User may have time to constitute his Debt and when constitute or if it be liquid before that he may