to the Lords concerning Prizes January 3. 1667. Warrand for general Letters for the Contribution due out of Benefices to the Lords November 17. 1668. Oaths to be taken for the price of Fowls January 15. 1669. Act anent Extracts of Registrate Writs bearing the Procurators names though not Subscribing December 9. 1670. Act anent Extracting Acts and Decreets Ianuary 20. 1671. Act against Magistrates of Burghs for letting Prisoners for debt go out of the Tolbooth Iune 14. 1671. His Majesties Order to the Commissioners of His Thesauray to free the Lords from the Cess July 19. 1671. Act for Keeping the Bars November 3. 1671. Act concerning priviledged Summons July 21. 1672. Act anent payment of Dues for Summons containing two Diets July 11. 1672. Act concerning Bankrupts January 23. 1673. Act Ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by three Lords in vacant time June 24. 1673. Letter anent Pryzes July 8. 1673. Act for Ordering new hearings in the Outer House July 11. 1673. Letter from His Majestie against appeals June 17. 1674. Act concerning Acts before Answer July 23. 1674. Act for Tryal of those presented to be Ordinary Lords of Session July the last 1674. Act upon the Marquess of Huntly's disowning Appeals January 26. 1675. Act concerning Prisoners for debt February 5. 1675. Act anent Bills of Suspension February 9. 1675. Act Ordaining Processes after Avisandum to be carryed to the Ordinary that same day and Reported in his Week June 2. 1675. Heugh Riddel sent to the Plantations July 20. 1675. Act anent passing of Bills for liberty out of Prison July 21. 1675. Act concerning the granting of Protections February 1. 1676. His Majesties Letter concerning the Clerks June 20 1676. Act concerning the Registers Iuly 4. 1676. Act for Inventaring the Registers Books July 13. 1676. Act anent the manner of Booking Decreets of Registration November 21. 1676. Act anent the Registers of Seasines and Hornings in the several Shires January 4. 1677. Act concerning Arrestments February 1. 1677. Act concerning Advocates June 7. 1677. Act concerning the sisting of Execution upon Bills of Suspension July 3. 1677. Act concerning the Suspensions of Protestations July 10. 1677. Act against Solicitations November 6. 1677. Act concerning Bills relating to concluded Causes November 9. 1677. Suspensions of the Excize to be past only in presentia December 6. 1677. Warrand anent Precepts for giving Seasine upon Retoures February 15. 1678. Act in favours of the Lord Register February 22. 1678. Act Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. Act prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords July 23. 1678. Act discharging Advocates and Writers Servants to Write their Masters Subscription July last 1678. Act Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers January 3. 1679. Orders for payment of the Dues of the Signet where Suspensions are appointed to be discust upon the Bill January 24. 1679. Act in favours of Intrant Advocats February 7. 1679. Act anent Executors Creditors November 14. 1679. Act anent the Registration of Hornings November 19. 1679. Act against Solicitations December 24. 1679. Act anent the taking of Renunciations from Persons Inhibited February 19. 1680. Act against Petitions for alteration of Acts Extracted February 24. 1680. His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session June 8. 1680. Act concerning Nottars July 29. 1680. Act concerning Bills of Suspension November 9. 1680. Act anent the marking of Advocates compearance for Defenders November 25. 1680. Act in Favours of the Macers February 15. 1681. Act anent Seasines and Reversions of Lands within Burgh February 22. 1681. THE ACTS OF SEDERUNT OF THE LORDS of SESSION Beginning the 5th Iune 1661 and ending in February 1681. ACT for Vniformity of Habit by the ordinary Lords Iune 5th 1661. THE Lords did find that the whole fifteen ordinary Lords of Session of whatsoever Place Dignity or Title they be should carry and use the ordinary Habit and Robes of the ordinary Lords of Session in all time coming ACT for continuing Summonds and writing in Latine as formerly Iune 6. 1661. THE Lords taking to their serious consideration of how dangerous consequence the alteration of Formes and Customes is They have therfore ordained and hereby ordain all Summonds which formerly abode Continuation and shall be insisted in before them to be continued in time coming and an Act to be made thereanent and Letters to be direct thereon as was in use to be done before the Year 1651 not exceeding the Rates and Prices formerly exacted And also considering that during the Power of the late Usurpers the use and custome of writing in Latine was then discharged by the pretended Commissioners for Administration of Justice Therefore the saids Lords ordain all Charters Seasings and other Writes of that nature alswell such as pass the Seals as other ways which were in use to be formed and written in Latine to be continued in the same Language as formerly before the Year 1652. And to the effect none may pretend Ignorance hereof ordains these Presents to be published at the Mercat Cross of Edinburgh after sound of Trumpet by a Macer ACT anent Warnings Iune 11th 1661. THE saids Lords ordain That all wakenings of Processes lying undiscust be execute upon 24 hours against all such Persons as are for the time within Edinburgh or Leith and upon 6 dayes against all other Parties within this Kingdom and upon fifteen dayes against all such Persons as are out of the Kingdom ACT for retaining the Principal Writes presented to the Register and giving forth only Extracts thereof THE which Day the Lords of Council and Session taking into their consideration That the custom of the Clerks in the Usurpers time of giving back to the Parties the Principal Bonds Contracts and other Writes given in to be registrat did tend to the hazard and prejudice of the Leidges and was contrary to the practise formerly observed They do therefore ordain that the Clerks of Session and all Clerks of Inferiour Courts and Judicatories shall henceforth keep and retain the Principal Writes for which they shall be answerable and give forth only Extracts thereof as formerly before the Year 1651. and ordains these Presents to be published at the Mercat Cross of Edinburgh Likeas the saids Lords require the Clerks of the Session to be careful in preserving and keeping all Principal Bonds Contracts and other Writes to be given in to them to be registrat and that they be countable for them and for their Servants so long as they shall give them trust thereof And that once in the two years they deliver them to be keeped by the Clerk of Register with the Publick Records of the Kingdom ACT for Protestation Money Iuly 4. 1661. THE said day the Lords taking to their
the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâ—eat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâ—ary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. â—f March 1681. yearâ— at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ— the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâ—s June 22. 1665. Act anent Proâ—tutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
to you the Subjects of the Kings of Spain and Sweden with whom we have particular Treaties which We shall send to you And wâ—ose Ships and Goods are to pass free they having such Passes as are agreed upon of which We did send Copies to Our Privy Council and so We bid you Farewell Given at Our Court at Whitehall the twenty seven day of December One thousand six hundred sixty and six And of Our Reign the eighteen year By His Majesties Command Subscribed thus LAUDERDAIL VVarrand for General Letters for the Contribution due out of Benefices to the Lords November 17. 1668. THE Lords have Ordained and hereby Ordain Letters and Executorials of Horning to be Direct at the Instance of these Ordinary Lords who have been admitted since Iune 1663. or shall be admitted hereafter against the Arch-bishops Bishops Priors Heretors Liferenters Feuars Farmers Tennents and Tacksmen of the Prelacies within this Kingdom for payment to them of their respective proportions of the Contribution Money payable out of the saids Prelacies and Allocat to their Predecessors in whose place they have succeeded by an Act of Sederunt of the date the 11. day of Iune 1663. and a Roll subjoyned thereto containing the particular division of the Contribution Money amongst the saids Lords and that for all Years and Terms since their admission and Entry and Yearly and Termly in time coming Oaths to be taken for the Price of Fowls Ianuary 15. 1669. THE which day It being represented to the Lords That the Magistrates of Edinburgh desired to know whether they might warrantably exact the Oaths of the Poultrie-men and In-keepers concerning their contravention of the Acts lately made for the price of Fowl drest and undrest The Lords finds that the Magistrates of Edinburgh may and ought to exact the Oaths of the contraveeners of these Acts either the Poultrie-people who sell the Fowls undrest or In-keepersâ— who sell them drest And recommend to the Magistrates to be careful in the speedie and exact execution of these Acts. ACT anent extracts of Registrate writs bearing the Procurators named though not subscribed December 9. 1670. THE Lords of Council and Session do grant warrand to the Lord Register and the Clerks of Session his Deputes to registrate such Bands Contracts and other Writs as shall be given in to them to be registrat and therein to insert the consent of Advocats as Procurators to the Registration as they were in use to do formerlyâ— and accordingly to give out extracts thereof notwithstanding that the Advocats do not subscrib their consent And appoints this warrand to continue untill further order Likeas the Lords declare that any Extracts given out by the Clerks in manner foresaid since the first day of November last are warrantably given and cannot be quarrelled upon that ground that the Advocats consent to the Registration is not subscribed ACT Anent Extracting Acts and Decreets Ianuary 20. 1671. THE Lords enacted and ordained that no Act or Decreet done either in the Inner or Utter-house shall be extracted untill 24 hours elapse after the same is read in the Minut Book ACT against Magistrats of Burghs forletting prisoners for Debt go out of the tolbooth Iune 14. 1671. THE Lords considering That albeit by the Law Magistrats of Burghs are oblidged to retain in sure warde and firmance Persons incarcerat in their Tolbooths for Debt Yet hitherto they have been in use to indulge Prisoners to go abroad upon several occasions And it being expedient that in time coming the foresaid liberty taken by the Magistrates of Burghs should be restrained and the Law duely observed Therefore the saids Lords do declare that hereafter it shal not be lawful to the Magistrates of Burghs upon any occasion whatsomever without warrand from His Majesties Privy Council or the Lords of Session to permit any Person incarcerat in their Tolbooth for Debt to go out of Prison except in the case of the Parties sickness and extream danger of Life The same being always attested upon oath under the hand of a Physician Chirurgion Appothecary or Minister of the Gospel in the place Which Testificat shall be recorded in the Town Court Books And in that case that the Magistrats allow the Partie only liberty to reside in some house within the Town during the continuance of his sickness They being always answerable that the Partie escape not And upon his recovery to return to Prison And the Lords declare that any Magistrats of Burghs who shall contraveen the premisses shall be lyable in payment of the Debtsâ— for which the Rebel was incarcerat And appoints this Act to be intimat to the Agent for the Royal Burrows and to be insert in the Books of Sederunt His MAJESTIES Order to the Commissioners of His Thesaury to free the Lords from the Cess Iuly 19. 1671. CHARLES R. RIght trusty and well beloved Cusing and Counciller right trusty and well beloved Councillers and trusty and well beloved We greet you well Vpon the humble desire of President and Senators of Our Colledge of Iustice Signified unto Vs by Our Secretary We have thought fit to express Our so great tenderness of their Priviledges as to discharge the President and all the ordinary Lords of Session of their proportions of the Currant Supply granted unto Vs by the late Session of Our Parliament although they gave their Bond for the same Therefore Our pleasure is and We do hereby Authorize you to give Command nor to exact any of the said Supply from the proper states of the said President and ordinary Lords of Session but that the same be discharged And if any part thereof be already Collected that it be payed back to them respectively for which this shall be your warrand And so We bid you heartily Farewell Given at Our Court at Windsor Casile the 12 day of Iuly 1671. and of Our Reign the 23 Year Subscribed thus by his Majesties command Lauderdail ACT for keeping the Barrs November 3. 1671. THE Lords of Council and Session considering that there is great disorder and confusion occasionâ—d by the thronging in of the Advocats men and others upon the Clerks and their Servants in the Utter-house before the ordinary Lord go to the Bench. And after twelve a clock at the reading of the Minut Book For remeid whereof they ordain the Minut Book in time coming to be read in the nethermost end of the Loft appointed for the Advocats Servants And prohibit and discharge all Advocats Servants and other persons who are not licenced and allowed to enter or remain within the Innermost Barr of the Utter-house where the Clerks and their Servants stays under the pain of three pounds Scots to be applyed the one half for the use of the Poor and the other to the Macers And to be further censured by imprisonment or otherways as the saids Lords shall think sit And to the end the said Act may be more duely observed The Lord do ordain authorize and require the Macers to exact
said is the Lords ordains the said Lord Caringtoun to be Exonered and Discharged of the saids Records and of his Trust in keeping of the same and ordain an Act of Exoneration to be extended thereupon in his Favours The Lords do ordain the Inventar of the Register Books to be set down in order in time coming and according to the several matters contained therein First of the Records of Parliament Secondly of the Records of Council Thirdly the Registers of Session and amongst them of Registrate Writs a-part of Decreets and Acts a-part and of Books of Sederunt Next to these the Registers of Exchequer Then the Registers of the Chancellory And thereafter the Registers of Seasins both the general Registers at Edinburgh and the special Registers of the Shires And in all to keep the order of time As for the Warrands of the Registers of Session since the year 1660. they are yet in the hands of the Clerks of Session And the former Warrands being in great Masses without any Order the Lords do appoint that the said Masses be sorted putting the Registrat Writs together and the Processes together and that the number of them both be taken and set down that thereafter they may be also digested according to the Order of time It is appointed that so soon as the Inventary shall be perfected it shall be insert in the Books of Sederunt ACT anent the manner of Booking Decreets of Registration November 21. 1676. THE Lords considering that where Registrations are persued by by way of Action it is and hath been the custom of the Clerks to keep in their hands the principal Writes decerned to be Registrate in the same manner as they do where Writs are Registrat upon the Parties consent Therefore the Lords ordain that these Decreets of Registration be Booked together with Bonds Contracts and other Writes which are Registrat upon the Parties consent according to the date thereof and that the Process be keeped with the Warrants of the Registrat Writes ACT anent the Registers of Seasins and Hornings in the several Shires Ianuary 4. 1677. THE Lords considering that by the Act of Parliament in Anno 1672. Concerning the Regulation of Judicatories the Keepers of the Registers of Hornings and Inhibitions and Seasins and Reversions in the several Shires are ordained to make exact Minut-books relating to these Registers in manner prescribed in that Act and the Sheriff Bailzie of the Regality or Royalty or their Deputs with two Justices of Peace if they be present are appointed at the times expressed in the said Act to take inspection of the saids Registers and the Minut-books relating thereto and after Collationing thereof to Subscribe the Minut-book under the Penalty of an hundred Pounds Scots for ilk Failzie in not meeting and comparing the saids Registers And the saids Lords to whom the care of seeing the Premisses done is committed by the said Act having by Missive Letters of the 31. of Iuly last direct to the several Sheriffs of this Kingdom required them by themselves or their Deputs to go about the performance of what is enjoyned to them by the foresaid Act and to return a satisfactory account of their diligence the first day of November thereafter now by-past certifying them if they failed they would be charged with Letters of Horning for the Penalties contained in the said Act and seeing the Sheriffs of the Shires after-mentioned and their Deputs viz. of Argile Renfrew Wigtoun Bute Peebles Selâ—irk Perth Kincardin Aberdene Nairn Sutherland Caithness Berwick â—orâ—ar and Inverness The Stewart of Kirkcudburgh and the Stewart of Orkney have not returned report to the saids Lords of their diligence in the Premisses therefore the Lords do ordain Letters of Horning to be direct against the saids Sheriffs and Stewarts and their Deputs Charging them to meet and to compare the Registers of Hornings Inhibitions Seasins and Reversions in their respective Shires with the Minut-books relating thereto and after Collationing of the same to Subscribe the Minut-books conform to the said Act of Parliament and to make report of their diligence therein to the saids Lords betwixt and the twenty day of February next and likewise Charging them to make payment to Sir William Sharp His Majesties Cash-keeper of the Penalties already incurred by them viz. an hundred Pounds Scots for ilk by-gone Failzie in not meeting and comparing the saids Registers at the times exprest in the said Act of Parliament and that within the space of fifteen dayes after the Charge as to such of the saids Sheriffs and their Deputs who reside upon this side of the River of Spey and upon twenty one dayes as to those who reside benorth Spey ACT concerning Arrestments February 1. 1677. THE Lords considering the great prejudice to Creditors and delay of Justice occasioned by Arrestments proceeding upon Decreets which are not ordinarly loused whereupon Debitors do procure delay of the Decreets at the instance of their Creditors against them before the same be extracted whereby lawful Creditors are hindered in recovering their jâ—st Debts until a several Process of double Poinding calling the Creditors and Arresters to dispute their Rights be raised and determined which if they should come in as distinct Processes by the course of the Roll would take a long time during which the principal Cause behoved to â—ist For remeid whereof the saids Lords do declare that they will receive all double Poindings for purging of Arrestments as incident Processes with the principal Cause without any new Inrolment and do further declare that if the Arrester proceed not in Diligence by an Action for making forthcoming whereby his Debitor may be Certiorat of the Arrestment and may raise double Poinding in the name of his Creditor in whose hands the Arrestment is made that they will grant no delay upon pretence of such Arrestments albeit upon Decreets But that the same shall be purged by Caution to be found by the Creditor to warrand the Debitor at the hands of the Arrester and that upon pretence of the Caution found they will not grant Suspension except upon Consignation after Distress by Decreet Likeas the saids Lords do declare that they will grant no Suspension upon Arrestments laid on after extracting of Decreets whether upon Decreets or Dependences but by way of double Poinding that thereupon both the Creditor and Arrester may be called ACT concerning Advocats Iune 7. 1677. THE Lords having called in the whole Advocats did intimate to them that whereas His Majesty had by a Letter of the 24. of May 1676. required the saids Lords to prevent and punish all Combinations and unwarrantable Correspondences amongst Advocats whereby they may forbear or refuse to Consult or Concur with these who did faithfully adhere to his Majestie 's Service and did continue in or early return to their Station Which Letter immediatly after receipt thereof was publickly read before the whole Advocats notwithstanding whereof some Advocats do refuse or forbear to meet with others of the
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
found by the Depositions of the Witnesses that that part of the Town of Inverness on the Northâ—side of the Water only had been in Possession by casting Peats in the Moss contraverted and that the same is a part of Month Kaplock and that the Pursuer had proven the Right of Property therein And therefore ordained the Town of Inverness on the other side of the Water to desist from the Moss contraverted and granted Commission to seâ—tle the Parties anent their place in casting in the Moss or in case of variance to Report Iean Dalmahoy contra Hamiltoun of Binnie December 6. 1661. JEan Dalmahoy Charges Alexandee Hamiltoun of Binnie for a Tack-Duty of 2000. merks due to her for her Liferent-lands he Suspends on this Reason that he has taken the benefit of the late Act of Parliament between Debitor and Creditor and this Sum being above 2000. merks stands thereby Suspended for six years The Charger Answers non relevat because the Act extends not to Rents or Tack-Duties of Lands albeit exceeding 1000. Pounds but only to borrowed Sums and other money bearing Annualrent which in Recompence of that forbearance are accumulat with the Principal Sums The Lords found the Act not to extend to Rents or Tack-duties and therefore repelled the Reason Iames Hoom contra Abraham Hoom. Eodem die JAmes Hoom as Assigney to a Reversion and order of Redemption used by the Earl of Hoom against Abraham Hoom pursues Declarator of Redemption and Removing in the same Process The Defender alleadged Absolvitor because the Reversion expressed not Assigneys and therefore the Defender cannot be oblieged to renounce to the Pursuer an Assigney Secondly At the time of the Confignation the Earl required the Wodsetter to Subscribe the Renounciation to a blank Person upon a back Bond declaring the same to the Earls behove which he was not oblieged to do by the Tenor of the Reversion Thirdly No Declarator till the Earl produce the Sum at the Bar seeing he lifted it himself The Lords found that albeit the Reversion expressed not Assigneys yet seeing the Order of Redemption was used by the Earl himself the Assigney had sufficient Right but Decerned the Defender to Renounce only in favour of the Earl and his Heirs but not to Dispone to any other Person as the Earl desired and Declared there should be no Decreet extracted till the Consigned Money were produced and given up neither did they decern in the removing till the Parties were further heard thereupon Alexander Tailzifer contra Sornebeg Eodem die ALexander Tailzifer as Heir appearand to umquhil Tailzifer of Redheus Pursues Mistresse Margaret Forrester his Uncles Relict and Iohn Schaw of Sornebeg her Husband for Exhibition ad deliberandum of all Writs granted not only to the Defunct but also granted by the Defunct to his said Relict or any other Person The Defender alleadged non relevat for Writs granted by the Defunct to the Defender or other Persons because albeit the Pursuer were entered Heir he had no interest for Exhibition thereof unlesse there were Clauses in his favour therein nemo tenetur edere instrumenta contra se and if this were sustained it were the way to make patent all the Charter Chists in Scotland at the Instance of appearand Heirs under pretence to Deliberat but in effect to pick Quarrels and find the weaknesse thereof The Pursuer answered maxime relevat for seeing the Law gives Heirs the benefit of Deliberation they must have the necessary means thereof by Inspection not only of the benefite but also of the burden of the Defunct without which they cannot know num sit damnosa haereditas Especially in this case against a Relict who probably might have had Influence upon the Defunct Husband to grant Right to her that might Evacuat the Heritage And in this case the appearand Heir had a more large Interest to crave Exhibition nor the Heir Entered who could only crave Exhibition for Delivery Transumpt or Registration and so behoved to Libel a peculiar Interest but the appearand Heirs Interest is only ad deliberandum And therefore the Exhibition as medium thereto must reach to all whereupon he ought to Deliberat Especially the Defuncts Debt and albeit it be true nemo tenetur edere instrumenta contra se to found or give Title to the Pursuers Action Yet he having Title by the Law to crave Inspection for Deliberation hath good Interest Yea if he produce a Title in himself he may even force the Defender to Exhibite Writes ad probandum by an incident as well as third Parties to whose Writ he hath no Right save only to bear testimony for him The Lords having heard this Case in their Presence because the Point had been variously Decided as to Writs granted by Defuncts found the Libel Relevant not only for all Writs granted to the Defunct but also granted by the Defunct to his Relict Bairns or Servants in his Family at the time of his Death being such Writs upon which no Infeftment followed for as to these they thought the Registers may give as much Evidence as was sufficient to Deliberate and would not upon this ground open Charter Chists for shewing real Rights and the plurality carryed that even Personal Rights granted to strangers should not be produced hoc modo severals being of the opinion that Debts Discharges and Personal Rights should be thus Exhibite In respect that Heirs in Scotland were lyable simpliciter for all the Defuncts Debts And therefore should have Inspection as well of his Debts as of his Estate as was found before between the Lairds of Swintoun and West-nisbit observed by Dury February 26. 1633. Katharine Kinross contra Laird of Nunthil December 10. 1661. KAtharine Kinross having Charged the Laird of Nunthil for payment of a Bond granted to her first Husband and the longest liver of them two and their Heirs which failzing his Heirs he Suspends on this Reason that she is but Liferenter and the Defunct being Infeft in Fee she would not Renounce but the Heir Which the Lords Sustained and found the Letters only orderly proceeded for the Annualrent The Earl of Roxburgh contra Mcdowal of Stodrick December 11. 1661. THE Deceased Earl of Roxburgh having obtained Decreet of the Commission for the valuation of Teinds in Anno 1635. against Mcdowal of Stodrick this Earl having Right from the Deceast Earl pursues Stodrick for payment of the valued Duty The Defender alleadged no Process because he had intented Reduction of the said Decreet and Improbation of a Procuratory mentionated therein to have been produced by Mr. Robert Trotter warranding him to consent for Stodrick to that Valuation which is the only ground of the Decreet without either Dispute or Probation In which Reduction Terms are taken to produce and being prejudicial to this Action it must be first Discussed The Pursuer answered that there can be here no prejudiciallity which is only betwixt two Principal Actions but here res est judicata by a Decreet
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords â—â—und the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer â—â—â—â—prove the Qualitieâ— thereof and so found the Reply not to acknowâ—â—ge the Defense but reserve it to either Partie to alleadge contra â—oducenda and found the Personal Obligdement sufficient to dâ—bar the Purâ—â—â—â— albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bâ—rns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâ—stantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ— Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâ—ty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
own Rigt The Lords Repelled the Defense in respect of the Reply Cicil Ruthven contra Hay of Balhousie Eodem die CIcil Ruthven having granted a Bond to David Lamb that thereupon he might Apprize from her an Annualrent whereunto she was Apparent Heir whereupon she having obtained a Decreet and now seeking Adjudication in Lambs Name Lamb produces under his hand a Writ declaring that his Name was but used in Trust that he disclamed the Processe The Lords notwithstanding Sustained Procâ—sse being so far proceeded in respect of the Declaration bearing the Trust and found he could not disclaim in prejudice of the Trust. Lady Swintoun contra Town of Edinburgh Eodem die THe Magistrats and Councel of Edinburgh having granted them to be Debitors to the Lady Swintoun by way of Act conform to their Custom The Lady supplicat that the Lords would grant Letters of Horning upon the said Act whereupon the Magistrats being Cited upon twenty four hours alleadged they were not Conveenable hoc ordine by suiting Letters of Horning upon a Bill but it ought to have been by an ordinary Summons either craving payment or Letters conform The Lords notwithstanding granted Letters of Horning Baillies of Edinburgh contra Heretors of East-lothian and Mers February 20. 1663. THe Baillies pursue these Heretors for so much allowed of the Maintainance of these Shires of the moneths of August and September 1650. And insisting on an Act of Litiscontestation in Anno 1659. Whereby the Defenders having proponed a Defense of total vastation the same was found relevant The Defenders having now raised a review alleadge that they ought not to have been put to prove total Vastation seing Vastation was Notour these Shires being the Seat of the War where the English Aarmy lay which ought to have freed them unlesse the Pursuers had replyed that the Heretors got Rent that year and had been burdened with the Probation thereof 2dly The Order of Sir Iohn Smiths general Commissar and also of the Provisors of the Army bearing the Provisors to have Furnished such Provisions want Witnesses and might have been made up since they were out of their Offices The Lords adhered to the Act and found the Defense of total Devastation yet Relevant in this manner that the Heretors got no Rent and granted Commission to receive Witnesses at the head Burghs of the Shires for each particular Heretor to prove their particular Devastations and Sustained the Order of the General Commissar he making faith that he subscribed an Order of the same Tenor while he was in Office Hary Hamiltoun contra William Hamiltoun February 21. 1663. HAry Hamiltoun pursues his Brother William as behaving himself as Heir to their Father Iohn Hamiltoun Apothecary to pay six thousand merks of Provision by Bond and condescends that William intrometted with the Rents of the Lands of Vlistobe whereunto his Father had Heretable Right The Defender answered that his Father was not Infeft because he Infeft the Defender therein before his Death Reserving only his own Liferent The Pursuer answered that the Infeftment was under Reversion and was Redeemed by the Father which Order though not Declared gave him the Right to this Land and was more than equivalent to an Heretable Disposition cled with Possession which would make the Apparent Heirs intrometting infer behaving as Heir for the Declarator non constituit sed declarat jus constitutum The Lords Repelled the Defense and duply in respect of the condescendence and reply of the Order used 2ly The Defender alleadged absolvitor because those Lands were Apprized from the Defunct and thereby he was denuded and so the Defender could not be Heir therein at least he could have nothing but the Right of Reversion which reacheth not to Mails and Duties The Lords found that unlesse the Defender had Title or Tolerance from the Apprizer the Legal not being expired but the Debitor in Possession his Heir intrometting behaved as Heir the Apprizing being but a Security of which the Apprizer might make no use or but in Part as he pleased Stirling contra Campbel Eodem die THe same last point was found betwixt these Parties and also that the Heirs Intromission with the whole Silver work so comprehending the best of them which is the Heirship was gestio pro haerede Anna Wardlaw contra Frazer of Kilmundi Eodem die ANdrew Wardlaw having a Wodset upon some Lands of the Lord Frarzer The Debitor raises Suspension of multiple Poinding against Anna Sister and Heir to the said Andrew Wardlaw and Frazer of Kilmundi pretending Right by a Legacy from the Defunct to the same Sum. The Heir alleadged that it could be lyable to no Legacy being Heretable The Defender answered primo the Legacy was made in proâ—inctu belli where there was no occasion to get advice of the Formal and Secure way of disposing of the Wodset but the Will of the Defunct appearing in eo casu it must be held as effectual as Testamentum militare in procincâ—u which needs no solemnities 2ly The Heirs Husband hath homologat the Legacy by discounting a part thereof It was answered that no Testament whatever can reach Heretable Rights with us 3ly That the homologation of the Husband cannot prejudge his Wife nor himself quoad reliquum not discounted The Lords found the Heirs had only right except in so far as the Husband had homologat the Legacy which they found to prefer the Legator to the whole benefit the Husband could have thereby jure mariti but not to prejudice the Wife thereafâ—er Iames Aikenhead contra Marjory Aikenhead February 25. 1663. THe said Iames insists for the delivery of a Bond granted to his umquhile Father and Assignation thereto by his Father to him against the said Marjory producer thereof It was alleadged no delivery because the Assignation in favours of the Pursuer was never delivered but keeped in his Fathers Possession which cannot be accompted his Possession seing the Pursuer is a Bastard 2ly The conception of the Assignation is to the Pursuer and his Heirs which failzing to the said Marjory and her Heirs and he being now Minor ought not to dispose of the Sum in her prejudice The Lords Repelled the Defenses against the delivery and found that the Pursuer during his Minority should not uplift the Sum till the Defender were called and had accesse to plead her Interest Adam Hepburn contr Helen Hepburn Eodem die THe Estate of Humby being provided to Heirs whatsoever umquhile Tomas Hepburn of Humby in his Contract of Marriage with Elizabeth Iohnsâ—oun provides the said Estate to the Heirs-male and provides 25000. merks for the Daughters there is a Clause of the Contract Bearing that it should be leisome to the said Thomas at any time during his Life to alter the said Provision or to dispone thereof according to his pleasure thereafter upon Death-bed he Disponed the whole Estate in favours of his Daughter of the Marriage being his only Child Adam Hepburn his Brother as Heir-male intents
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
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
Person Substitute his whole Debt but quoad valorem of what the Substitute had obtained by the Substitution And therefore found the Sums to belong to Andrew as Heir Substitute and yet with the Burden of the Compensation in the same Case as was Competent against Malcolm himself By which Decision it follows that the Mothers Substitution to Malcolm was Effectual for which there is no reason but the Error was in the first Concoction for this Sum should have been found a pure Donation by the Mother not only in respect of her Liferent reserved which she past from but in respect of the Substitution which she could not pass from being jus tertij Earl of Kinghorn contra Laird of Udney Eodem die THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney he by his Missiveâ— acknowledged the Sums to be satisfied and obliged him to grant a Renunciation whereupon the Earl of Kinghorn pursues this Vdney as representing his Father to grant Renunciation and Procuratory of Resignation and condescended upon the passive Titles thus that umquhil Vdney after the Receipt of the Sums contained in the Wodset had Infeft the Defender in the Estate of Vdney reserving to himself a power to alienat and Dispone after which Infeftment this Missive is subscribed acknowledging the Receipt of the Sums of before and thereupon alleadged first That the Father was oblieged by the Contract of Wodset upon payment of the Sums to Renunce and Resign in prejudice of which Obliegements he had Disponed his Estate to the Defender who was alioqui successurus and so as lucrative Successor is oblieged to grant the Resignation 2ly The Letter obliging the Father to grant Resignation albeit it be after the Infeftment yet seing there is a power reserved to the Father to Dispone his Obligement must oblige the Son It was answered that there was nothing before the Defenders Infeftment to instruct payment the Letter being after and no Obligement therein could burden him thereafter unless his Father had Disponed or had given a Security out of the Estate conform to the Reservation The Lords found this passive Title new and extraordinary therefore moved to the Pursuer to alter this Libel and Libel therein a Declarator of Redemption and to conclude the same either with a Reduction or Declarator for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied might be declared Extinct in which case there needed no Resignation or otherwise might conclude the Defender to grant Resignation and the Defender thereupon Renuncing to be Heir the Pursuer might adjudge and thereupon be Infeft But others thought that hardly could a Right be adjudged which was satisfied and extinct The Lords referred to the Pursuers choise vvhich of the vvayes he thought fit Iean Cuningham contra Laird of Robertland Iuly 4. 1666. JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland pursued general Declarator against his Son who alleadged Absolvitor because the Horning was null seing the Charge and Denunciation was only at the Mercat Cross of Edinburgh whereas by the Act of Parliament 1597. c. 294. all Hornings Execute against Persons within the Realm dwelling within Bailleries or Stewartries should be Execute at the head Burgh thereof Ita est umquhil Robertland had his Dwelling-house at Robertland within the Baillerie of Cuningham albeit for a time he was out of the Countrey and was a Prisoner of War for the King The Lords Repelled the Defense and sustained the Horning and found that the Act of Parliament met it not seing neither the Person Denunced was within the Realm nor dwelt within the Baillerie at that time but had remained several years in England Hallyburton contra Hallyburton Eodem die HALLYBURTON pursues a Reduction of an Infeftment granted by by his Father upon his Death-bed to his Sisters who alleadged absolvitor because he had consented to the Disposition in so far as he had Subscribed Witness thereto and if need beis offered to prove that he had read the same It was answered non relevat because the Subscribing as Witness relates only to the verity of the Parties Subscription and nothing to the matter therein contained so that whether the same was Read or not it can import no Probation The Lords found the Defense Relevant reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work in case the Reading thereof were not proven Earl of Hume contra His Wodsetters July 5. 1666. THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus more then their Annualrents conform to the late Act between Debitor and Creditor Who alleadged first Absolvitor because the Reversion produced is null not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed and Subscribed by the Parties own hand or a Notar which shall make no Faith if it be not Registrat It was answered that that Act of Parliament was in desuetude not only upon the Point of not Registration but want of Seasine otherwise the Act of Parliament 1617. Anent the Registration of Seasines had dot been necessar The Lords Repelled the Defense and found the said old Act of Parliament to be in desuetude One of the Defenders further alleadged that the Rights of these Reversions are prescribed because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered that the Pursuer or his Predecessor were Minors during the space of 4 or 5 years of the said 13 prescriptio non curit contra minorem It was answered for the Defenders that in this part of the Act there is no exception of Minors albeit in the former part of the Act anent the 40 years Minority be expresly excepted exceptio firmat regulam in casibus non exceptis especially seing Reversions being but pacta de retro vendendo and so Bonds were prescribed by the old Act of Parliament so the addition of 13 years was ex mera gratia and ought to be strictly interpret The Lords did also Repel this Defense and found that the 13 years run not against Minors It was further alleadged for one of the Defenders that the Reversion made use of against him was since the Act of Parliament 1617. and not Registrat and so could not operat against him who is singular Successor to the Granter thereof The Pursuer Replyed that before the Defenders Right he had used an Order of Redemption and had Execute a Summons of Declarator whereby res fuit litigiosa and no Right granted thereafter can prejudge the Pursuer The Lords found the Reply Relevant to elide the Defense Laurence Scot contra The Heirs of Line of Auchinleck Eodem die LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck and the Lord Cathcart and the Lairds of Adamton and Sornbeg for a thousand merks adebted by him to the Defunct The Defenders
are not Counterband but are necessary in some quantity in every Ship for Calsing and by the Treaty betwixt the King and the King of Spain there is an express Article that though Counterband be deprehended in Spainish Ships only the Counterband shall be Prize and not the Ship and Goods It was answered that this alleadgeance was competent and Omitted before the Admiral It was answered that these cases with Strangers are to be Ruled by the Law of Nations and not by peculiar Statutes and Customs The Lords reponed the Strangers to their Defenses as in the first instance and also allowed the Privateer to insist on any grounds for making of the Ship Prize which he did not formerly insist on whereupon the Privateer insisted upon two grounds First Because by the Law of Nations and the Kings Proclamation of War Allies and Neuters must not make use of the Kings Enemies to sail their Ships and therefore the Proclamation of War bears expresly that all Ships shall be seised bearing any number of Men of the Kings Enemies and this Ship had the major part of her Company of Hollanders then the Kings Enemies as is evident by their own Depositions taken before the Admiral 2dly This Ship was not only sailed by Hollanders but the Ship or major part thereof and the Loadning belonged to Hollanders and any pretext that the same belonged to the King of Spains Subjects is a meer Contrivance it being most ordinar the time of the War for the Hollanders to Trade under the name and covert of the Flemish the King of Spains Subjects which appears in this Case by many evidences First Both the Merchant and major part of the sailers by their own confession are Hollanders and they have adduced nothing to be a sufficient probation that the whole ship and Goods belonged to Clepan in Bruges but on the contrair the Skippers first Testimonie at Linlithgow bears that this Ship and Goods belongs to Clepan and Revier which Revier being taken Aboard acknowledges that he was born in Holland but says that two or three years before the seisure he dwelt in Gent and Brussels under the King of Spain and having a Diligence granted to prove his Domicil the time of the War and Capture all that he proves is that in March 1667. he hired a House in Brussels and began to set up there and that sometime before he had lived with his Mother in Gent but proves not how long or that it was his constant Domicil for that was an ordinar contrivance for Hollanders to hire Houses in the Spainish Netherlands and to pretend to be Subjects there but they being Hollanders at the beginning of the War concurring and contributing to the War albeit they had truely removed tempore belli they continued to be the Kings Enemies much less can their taking a House else where sufficiently prove that they totally deserted the Hollanders and concurred not with them in the War it being easie to have Domicils in diverse places 2dly The contrivance is yet more evident in that the Goods were Shipped by Rivier at Fleck in Holland and sailing from thence to Copperwil in Norway and was taken having no Pass from the King of Spain for this Voyage but had a pretended Pass from the Duke of York which albeit it bears relation to the same Ship called Charles the second yet by the Testimonies of the Witnesses it is evident to have been granted two years before this Ship was Built which is an evident cheat and for the Pass from the Governour of the Netherlands it bears but to last for a year and was expired before this Voyage and as for the Pass from the Chamber of Commerce it was granted for a former Voyage from Ostend to France which is clear by the Testimonies which bear also that there could be no Pass gotten for this Voyage because this Ship was lying in Fleck and not in the King of Spains Ports and so the Loading could not be their lying and wanted Oath taken thereupon that it belonged not to the Kings Enemies as is requisite in such Cases It was answered for the Strangers to the first ground of Adjudication that it was no way sufficient First Because the King of Spain being an Allie by a perpetual League his Subjects were not to be regulat by the Kings Proclamations but by the solemn Treaties betwixt both Kings which setting down the causes of Seisure must necessarly import that seisure should be for no other cause then is therein exprest 2dly The Articles bear expresly that any of the Spainish Subjects having a Pass conform to the formula set down in the Articles should be no further troubled which formula requires nothing as to what Countrey the Sailers are of and therefore there can be no seisure upon the account of the Sailers for albeit by the Swedish Treaty the Swedes are allowed to have a Dutch skipper ◠〈◊〉 becoming a sworn Burgess of some Town in Sweden and he residing there from whence the Lords have inferred that the Swedes may not sail with Hollanders and have declared some of them Prize upon that account yet this cannot be exended to the Spanish Subjects in whose Treaty there is 〈◊〉 such thing 3dly By an Act of the Council of England produced it appears that his Majesty gave Order that all Flandrian Ships that were taken should be dismist if there were no other ground of seisure but that they were sailed by Hollanders until his Majesty review the Flandrian Concessions and give further Order and there is a particular Concession to the Flandrians beside this Treaty in regard their Language and the Hollanders is one◠they should not be seised upon the account of being sailed with Hollanders and 〈◊〉 to the other ground the Passes and Testimonies prove sufficiently that the Goods belong to Clepan in Bruges and there is but one Testimony of the Skipper that Revier is Owner which Testimony was taken at Linlithgow the Clerk or Interpreter having Interest in the Caper and the Skippers Testimony being again taken by the Admiral at Leith says nothing of Revier and albeit it did he is but one Witness and any Hollander deserting Holland the time of the War ceases to be an Enemie because the King invited such as would desert his Enemies to come live in England◠so that it is both his Majesties Interest and Intention in any way to weake◠his Enemies by causing their Subjects desert them It was answered for the Privateer that the Strangers could not pretend Right to the Spainish Treaty seing they wanted a Pass conform thereto and that it could not be inferred negative from the Spainish Treaty that seisures should only be for the Causes therein exprest there being no such Article in the Treaty and the Law of Nations and the Kings Proclamation being the Rule of War the Treaties with Allies do only explain or restrain the same and gives exceptions from the Rules for instance the Spainish Treaty makes Counterband
sell r. he did sell p. 493. l 8. peculium r. periculum p. 497. l. 47 yet whether r. yet where the p. 498. l. 30. 29. ad r. 30. act p. 518. l. 42â— so Richard r. to Richard p. 533. l. 28. loadned r. abandoned p. 546 uses to be preferred Adde the Strangers Infeftment p 567. l 30. and jus r. as jus p. 569. l. 22. Heretable r. Moveable p. 570. l. 4. the Husband therein r. the Husbands interest therein p. 590. l. 32. Ardoch r. him p. 593. l. 38. granted to r. granted by p. 610. l 7. no Testament r. a Testament ibid. did exhauâ—t r. did not exhaust p. 627. l. 26 nothing r. any thing p. 659. l. 30. by invalidat r. to invalidate p. 657. l. 36. are not comprehended r are comprehended p. 665. l. 27. exclude r. excluded p. 666. l. 41. and in r. and not p. 679. l. 21 they could be r. they could not be p. 725. l. 2. another r. a Mother last Index p. 2. l. 49. fragrant r. fragrant A LIST Of the Heads of the following Index or Alphabetical Compend ACT of Indemnâ—ty Act of Parliament Act Salvo Jure Adjudger Adjudication Admâ—ral Advocat Adulterâ—e Alibi Aliment Ann Annexation Annuitiâ— Annus deliberandi Annuelrent Appryzing Arbâ—ter Arrestment Assignatâ—oâ— Attester BAillie Baâ—rn Band Barron Base Infeftment Bastardie Behaving as Heir Bills of Exchange Blank Bloodwiâ—e Bona fides Burgh Burgh Royal. CAptâ—on Casus â—ortuitus Cause onerous Cauâ—â—oner Cedent Certification Charge Chyrogâ—aphum c. Circumvention Citation Clause Clause of Conquest Clause Irritant Clâ—â—se of Substitution Clause de non alienando Coal Cognâ—tion Colledge Command Commissar Commssion Commodatum Common Pasturage Commâ—ntâ—e Compensation Competent and ommitted Compt Compt Book Conclusion of the Cause Confession Confirmation Conâ—usion Conjunctâ—ee Conqueâ—â— Conâ—ent Consignatâ—oâ— Continuation Contract Conâ—rary Alleadgances Contravention Creditor Cropt Cruves Curators Custodie DAmnage Date Death Deathbed Debitor noâ— presumitur donarâ— Debitum fundi Declarator Declarator of Escâ—eaâ— Declarator of Non-entrâ—e Declarator of Nullity Declarator of Property Deâ—reet Decreet Arbitral Decreets of â—nferior Courts Deâ—reets of Session Decreets of Parlâ—ament Delivery Depositation Designaâ—ion Devastation Dilâ—gence Discharge Disposition Division Donatâ—on Donatâ—on betwixt Man and Wife Donator Double poynding In Dubiis c EJection Erection Escheat Exâ—cutors Executor Creditor Execution Exception Exhibition Exhibition ad deliberanduâ— Extract FAther Feu Feu-dutâ—e Forfaulture Fraud Fraught Fruâ—ts Gâ—neral Letâ—eâ—â— Gâ—ft HEirs Heir Male Heir substâ—tute Heâ—r apparent Heâ—rs â—n Tacks Heirship moveable Herâ—table Holden as confest Holograph Homologation Horning Husband Hypothecaâ—ion IGnorantia juâ—is c. Improbation Incident Pro â—ndiviso Infeftment Inhibition Interdiction Interruption Intimation Intromâ—ssion Jus Mariti Jus superveniens c. Jus tertii K The Kâ—ngs Palace Knowledge LAw Legacy Licence to pursue Litiscontestation Locus penitentiae Lords Lucrative Successor Life Lyferenter Lyferent Eâ—cheaâ— Lyon Herauld MAgistrats Mandaâ— Mails and Duties Maintinance Marriage Melâ—oration Merchant Metus Causa Miln Minister Minor non tenetur placitare c. Mâ—nor Minorâ—tie and Leâ—â—on Minute Missive Letter Mother Moveable NEarest of Kin Non-entrie Noviter veniens ad notitiam OAth Oath of Calumnâ—e Oath â—x officio Oath in 〈◊〉 Oath qualified Obligation Offer Office Overseer PArt and pertinent Parties having Interest Paricide Passing from c. Payment Pension Perrâ—l Personal Possession Possessor bonae fidâ—â— Possessorie Judgement Poynding Precept Premunition Prescription Presumption Priviledge Probation Process Promise Protutor Prize Ships Pupil RAtâ—habition Recognâ—tion Redemptâ—on Reduction Regalâ—tâ—e Relief Relâ—ct Removâ—ng Renunciation Reparation Repâ—obatâ—re Requâ—sition Retour Reversion Right Real SAlmond-fishing Satâ—sâ—action Seasine Service Servitude Simulation Singular Successor Slander Special Declarator Spuiâ—zie Stipend Stollen goods Submission Substitution Successor Lucrative Summonds Superior Superiority Suspensions TAcit Relocatâ—on Tack Taxation Teinds Tenor Terce Term of payment Testament Thirâ—age Tocher Trads-men Tranâ—action Transferrence Trust Tutor Tutor nominat Tutor dative ULtimus Haeres Use of Payment Userie VIcarage Violent profites Vâ—tâ—ation Vâ—tious Intromâ—ssion WArd Wakâ—â—ng Warnâ—ng Warrandâ—ce Wiâ—e Wâ—tnesses Wâ—tnes ex officio Wâ—tnesses insert Wodsetter Wodset Writ INDEX OR An Alphabetical Compend of the first Part of the Decisions of the Lords of Session beginning in June 1661. and ending in July 1671. ACT OF INDEMNITY found to liberate a Souldier â—cting with a party of Souldiers in Arms under any Authority lawful or pretended and that his Warrand or Command was thence presumed unless it were proven by his Oath that he had no Warrand and converted the Goods to his own private use Iune 25. 1664. Ferquharson contra Gardner The same found February 15. 1666. Lyon of Murâ—ask contra Gordouns and others But here the application was â—ound probable by Witnesses Act of Indemnity â—ound to secure a Person intrometting by order of the Comittee of Estates for the time in so far as he compted to them without necessity to show his Commission or the Warrand of the Auditors that compted with him but not found sufficient to free him from what he had omitted though the said Accompt bear That he had made Faith that he had omitted nothing Which was only accounted an Oath of Credulity like that of Executors February 13. 1667. Lord Iustice Clerk contra Laird of Lambertoun Act of Indemnity â—ound to make Intromettors with publick Money lyable only for their Intromissions and not for omission though by their Commission they were bound to do Diligence February 23. 1667. inter â—osdem Act of Indemnity found not to make Collectors lyable for what they intrometted with and compted not for not being applyed to their own use but carried away by Souldiers for the use of the Army without necessity to instruct the Souldiers or Collectors Warrand which was presumed Iâ—ly 28. 1668. inter â—osdem ACT OF PARLIAMENT Relating a former Act and not conform thereto â—ound not thereby to alter the former Act but to be Regulat thereby Ianuary 20. 1665. The Heretors upon Don Water contra the Town of Abâ—rdene An Act of Parliament anent leaving the mid-stream free in Crâ—ives found to be taken away by Deâ—uetude past memory Iuly 29 1665. Inter eosdem The like of the Act 1555. cap. 29. Iuly 5. 1666. The Earl of Hume contra his Creditors Act of Parliament in favours of private parties not Printed assigning them to some bygone Maintainance found not effectual against singular Successors though not excepted in the Act they not being called thereto Iune 25. 1668. Inglis contra Laird of â—alfour Act of Parliament betwixt Debitor and Creditor found not to extend to Bonds for Rents of Lands though exceeding 1000. pounds but that personal Execution might be thereon December 6. 1661. Dalmahoy contra Hamâ—â—toun of â—innie The said Act found to Restrict a Wodset though the Usurpers Act and all such Acts made or to be made were Resâ—inded Ianuary 29. 1661. Laird of Lamingtoun contra Sir Iohn Châ—isty The Security required by the said Act for Principal and Annualrent accumulat found either to be by
by the Seasine but deponed it was in Summer where the Seasine bear in Winter was improven though the Nottar offered to abide by it but the Lords refused to Examine him or any extrinsick Witness in respect the Seasine had no Warrand in writ Ianuary 9. 1669. Wallace of 〈◊〉 contra â—lâ—kerrel A Seasine propriis manibus by a Father to his Son reseving his Fathers Liferent was found valide against a second Wifes Infeftment in the same Lands though granted for a competent Tocher albeit the Seasine had but two Witnesâ—es and had no Disposition or Precept to Warrand it but an Adminicle viz. a Bond by the Father of the same date obliging him to warrand the Seasine and that it was not a fraudulent â—atent deed it being Registrate nor was it alterable by the Father as a Bairns portion February 11. 1669. Buchan contra Taits SERVICE of Harrage and Carriage in a 〈◊〉 was â—ound not due but when demanded within the year Iune 27. 1662. Watson contra Eleis SERVITVDE of Fail and Divot Clay and Stone granted in a Muire definitely where there was no pasâ—urage therewith was found not to hinder the Proprietar of the Muire to Plew and rive out a parâ— where there was more leâ—t then was like to serve the use of the Servitude â—or ever yet so as if it should happen at any time thereafter not to suffice a part of that riven out should be laid â—ee for the same purpose in this respect was had to the publick utility the whole Muire being otherwayes improfiâ—able and the restriction was not allowed till the Muire was actually riven out and plâ—wed Iune 21. 1667. Watson contra Feuers of Dunkeir A Servitude of putting over a Miln Damn upon other mens ground was â—ound not constiâ—ute without his consent though he shew no detriment to him thereby Iune 22. 1667. Hay of Strowiâ— contra Feuers A Servitude of common pasturage though if ordinarly carry Fail and Divot yet if by cuâ—â—ome Fail and Divot be excluded and hindered it is â—ot excluded February 15. 1668. Laird of Haining contra Town of Seâ—kirk SIMVLATION of a Gift of Eâ—cheat was inferred upon the Act of Parliament 1592. because the Rebel was suffered to possess four or five years in which 〈◊〉 were patent albeit the Donatar obtained gâ—neral declarator long before and was himself a lawful Creditor and that the Lands were appryzed before the Rebellion seing the Appryzer possessed not but the Rebel Ianuary 9. 1666. Oliphant contra Drummond Simulation of a gift of Liferent Escheat was â—ound probable by the Superiour and Witnesses insert in the gift their oathes that it was to the Rebels behove Iune 19. 1669. Scot contra Langtoun Simulation of a gift of Liferent taken by a party who had bought Lands for securing himself in respect the Sellers Escheat was â—â—llen was not inferred by allowing the Expenses of the Gift in the price of the Land which the Seller was obliged to warrand seing he did not extend the gift any further than to the Lands bought to himself unless it were proven he knew of the other party competing his Right that it was perfected before he took the other Disposition of the same Lands and thereby was particeps fraudis with the Seller who granted double Dispositions 22. 1669. Hamiltoun of Corsse contra Hamiltoun and Viscount of Frendraught Simulation of a Gift of Escheat and Liferent was not inferred because it was granted to the Rebels Son who was not in his Family but had means of his own nor that the Father continued in possession for sometime after Declarator nor were the members of Exchequer admitted to prove that the Gift was procured by the Fathers means and moyen seing the Son gave Back-bond that being satisfied of the debt in the Horning his own debt and expenses of the gift there should be place to the Rebels Crediâ—ors and did make Faith at the passing of the Gift that it was to his own behove December 4. 1669. â—â—ffrey contra Doctor 〈◊〉 Simulation of a Giâ—t of Liâ—erent was inferred from the Rebels obtaining the gift bâ—ank in the Donatars Name which being in his hand and delivered to a Creditor for security of a just debt the same was found null even as to him December 17. 1670. Langtoun contra Scot A SINGVLAR SVCCESSOR was not found lyable for publick burdens imposed by Committees of Parliament Ratified in Parliament Iuly 13. 1664. Grahame of Hiltoun contra Heretors of Claâ—kmannan Shire SLANDER Vide Commissaries IN A SPECIAL DECLARATOR of Escheaâ— the payment of the debt before denunciation was â—ound relevant upon the Creditors Oath but Nullity of the Horning upon informality of Process was found not relevant seing these purged not the Contempt and Disobedience in not paying or suspending February 10. 1663. Montgomrie contra Montgomrie and Lawder in this case the alleadgeaâ—ce on the Back-bond granted to the Thesaurer by the Donatar in favours of the Creditors was not found relevant without a second gift or warrand from the Thesaurer SP VILZIE was elided by Disposition and Instrument of possession though it was omnium bonorum and no natural possession â—ollowed for two years seing there was no forcible resistance Ianuary 29. 1662 Irwing contra Mâ—kartnay In a spuilzie many persons being called as accessory there being on others whereby the Defender might prove his Defense The Lords declared if the pursuer insisted against them all they would ordain him first to insist against the accessories that such as were assoilzied might be Witnesses February 24. 1662. Inter eosdem Spuilzie of Teinds was not elided by ther 15 and 17. Acts of Parliament 1633. Declaring the Teinds to be the fifth part of the Rents and that every Heretor shall have their own Teind until valuation be intented December 18. 1662. Lord Balmerino contra the Town of Edinburgh Spuilzie noâ— being pursued â—ithin three years can only be pursued thereafter as wrongous intromission and the parties are not lyable in solidum but if all be proven intromettors they are lyable equally as being all presumed to have equally intrometted unless the greater intromission of some of them be prove m Ianuary 17. 1668. Strachan contra Morison A Spuilzie was not elided by a poinding though one offered to make Faith the Goods were anothers then the debitors not being offered by himself his Servant or by his Commission seing that partie had a Disposition with an instrument of possession and several Acts alleadged oâ— his natâ—ral possession from whom the Goods were poinded Iuly 6. 1666. Corbet contra Stirling Spuilzie of Oxen the Pursuers had in the Pleugh four moneths was elided because the Defenders had intrometted with them by an order of the Sheriâ—â— execute by his Officers as being stollen Goods though there was no citation of paâ—â—ies for obtaining the warrand which might be summarly used for recovering of Goods notwithstanding of 4. moneths peaceable possession unless with the possession the pursuer should instruct a lawful and onerous