and so would not insecure Creditors doing diligence by Arrestment Lyon of Muirask contra Heretors of the Shire Eodem die LYon of Muirask having been Commissioner in the Parliament 1648. did by vertue of the Act of Parliament 1661. Allowing Commissioners Charges to these who served in Parliament 1648. Who adhered to the Engadgment charges the â—â—eretors of the Shyre to meet and Stent and their being a Stent made conform to the Valuation he Charges thereuponâ— some of the Heretors Suspends and alleadge that they were not charged to meet and so the Stent Roll is null 2ly That is not instructed that the Charger attended all the dayes in the Parliament 3ly That the Roll ought to be made according to the Retour and not to the Valuation conform to the Custom before the troubles The Lords found that seing the Heretors who met expressed in the Stent Roll that all the Heretors were charged that it was sufficient though the Executions against each on of them was not now produced and because the Sedâ—runts of the Parliament 1648. were not to be found They found he had right to the whole Charges during the Parliament unless for such time as they shall prove by his oath that he was absent but found that the Stent Roll ought to be according to the Retour and not to the Valuation Lady Greenhead conra Lord Loure February 10. 1665. THe Lady Craig and the Laird of Greenhead her second Husband pursues the Tenents of Craig wherein she is Infeft for Mails and Duties In which Process my Lord Loure coâ—â—pears for his Interest and alleadges that he having Appryzed the Estate of Craig and being Infeft thereupon hath raised Reduction of the Ladies Infeftment on this Reason that a Part of his Sumes being anterior to the Ladies Infeftment who was competently provided by her Contract of Marriage in 30. Chalder of Victuall and this additional Infeftment of fifty Chalder of Victual being betwixt most Conjunct Persons Husband and Wife in so far as it is posterior to the Pursuers lawful Debt ought to be Reduced upon the Act of Parliament 1621. The Pursuer answered the Reason ought to be repelled First Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts in prejudice of their lawful Creditors is not relevant seing Craig the Disponer was not a Bankerupt 2ly As he was not a Bankerupt so neither was heâ— insolvendo because the Reversion of his Estate is sufficient to pay his Debt albeit the Same were affected with this additional Joynture It was answered for the Defender that albeit the Title and Narrative of the Act be against Bankerupts yet the Statutory part thereof is against all gratuitous Dispositions by Conjunct Persons so that the Defender needs not alleadge that either the Disponer was Bankerupt or insolvendo but that the Ladies Infeftment is betwixt Conjunct Persons without an onerous Cause The Pursuer answered that the Disponer was neither Bankerupr nor insolvendo and the Defender can have no Interest unless there were fraud or prejudice which the Defender cannot alleadge because the Pursuer is content that the Defender have access by his Appryzing to the Joynture Lands In so far as will satisfie his Annualrents and by the Act betwixt Debitor and Creditorâ— the Lords are impowred to restrict Appryzings to their Annualrent and so he can pretend no prejudice providing he assigne the Lady to his Appryzing in so far as he satisfies his Annualrent out of her Additional Joynture The Lords found the answer to the Reduction Relevant upon purging of the Appryzers prejudice not only by admitting him to have access to the Appryzed Lands upon Assignation as said is during the Legal but with Declaration that if the Lady Redeemed not within the Legall the Lands should be irredeemable and the Lady totally excluded Earl of Lauderdail contra Lord Oxfuird February 11. 1665. THe Earl of Lauderdail his Guidsir being Infeft in the Barony of Musselburgh which is a part of the Abbacy of Dumferling by a Gift from King Iames in Anno 1584. Excepted by the Act of Parliament for Annexation of Kirklands in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King as Heir to Queen Ann his Mother who had a Heretable Disposition of the whole Lordship of Dumferling from the King after Lauderdails first Right Lauderdail obtained Conformation of his first and subsequent Rights in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right void Which Ratification bears an express provision That it shall not be prejudged by the Act salvo jure cuâ—uslibet The Defender alleadged absolvitor in hoc judicio possessorio because his Father was Infeft by the King in Anno 1641. And by vertue thereof in possession twenty years before this persuit and as for his Ratification the Defender not being called thereto it cannot take away his Right being founded super jure communi untill the Pursuer insist in Reduction In which case the Defender shall answer but is not oblidged to answer in hoc judicio and as for the exception of the Act salvo jur It s against the common Law and the Act salvo jure is posterior without repeiting that exception The Pursuer opponed his Ratificatiom excepting the Act salvo jure which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right The Lords cannot be Judges to reduce the Sentence and Statute of Parliament as Durie observes to have been found in the Case of the Earl of Rothes and Iohn Stewart of coldinghame The Defender repeiâ—ed his answer and for these Decisions opponed the Tennor of the Act salvo jure 1633. And repeited 1661. Whereby the Lords are ordained to decide in the Rights of privat Parties according to Law without respect of Ratification or other privat Statuts in favours of particular Persons such as this which being after this decisions clears and enlarges the power of the Lords The Pursuer opponed his Ratification and exception of the Act salvo jure which bears expresly That it should stand as a publick Law and so was no privat Statute mentioned in these Acts Salvo jure The Lords having considered the Case and that such exceptions from the Act Salvo jure were of dangerous consequence to the Leidges They ordained the Parties before answer to dispute the point of Right as if such an exception of the Act Salvo jure had not been granted but they thought that Defense upon a possessory Iudgement being but a point of form whereby the Rights of Parties were not competent by exception or reply the Parliament might dispense therewith and also might repone Parties as to the matter of Prescription or quoad minor non tenetur placitare but if without these and such the Pursuer had a prior valid Right The Lords were loath to enter upon the case of
Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ— and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâ—ded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ— in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâ—shabilitation whereupon it was founded the Defenders Tack following thereuponâ— falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ— 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ— and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
pursues for the Teinds of Kello and Cumerjame upon the Infeftment of Relief He had before obtained Sentence for the Years preceeding John Stewarts death during which his temporal Provision stood and as to which there was litle controversie by the Act of Rehabilitation but now the Pursuer insisted for the years after Iohn Stewarts death It was alleadged for the Defender First That he has Right by his Tack unexpired from the Earl of Hoom who had the only Right of Fee to the whole Abbacie by his Infeftment granted to him by the King long before the Infeftment granted to Iohn Stewart It was answered that the Earls Infeftment proceeding upon Iohn Stewarts dishabilitation that being rescinded and he rehabilitat the Earls Infeftment fell in consequentiam and John Stewarts Right on his own dimission is the only Right It was answered for the Defender that the Earl of Hooms Right did not proceed solie upon John Stewarts dishabilitation but on the Act of Annexation following thereon Anno 1612. And Johns Rehabilitation could put him in no better condition than before the Dishabilitation and so could extend no further but to the Personal Provision he then had It was answered That in that special Act of Annexation 1612. The Spirituality or Teind was excepted as it was in the General Act of Annexation and so no Right granted by the King till the Teinds were dimitted in his hand by the Titular could be respected as being a non habente potestatem at least not proceeding legitimo modo It was answered that the Teinds though not Annexed yet by the suppression of the Popish Clergie they returned to the Crown for the General Act of Annexation doth not give the King a Right but acknowledged his Right by the Ceasing of the ends for which these Benefices were granted but the Annexation makes them indissolvable from the Crown and indisposable by the King and so the Teinds being Annexed they cease not to belong to the King but they are at his Disposall and he having disposed of them to the Earl of Hoom before he disposed of them to John Stewart the Earls Right is preferable and so the Defenders as his Tacksman It was answered That all the Erections of Benefices in Temporalities were only upon Demissions of the Titulars for though the Popish Clergie was supprest yet the King presented Persons to the Benefices who had the Titles of Abbots and Commendators and sat in Parliament but had not the Office and in so far they were not supprest and so the King could not dispose of the Benefice till it were demitted by the Titular in his hands It was answered that the King could not dispose in prejudice of the Titular incumbent but that the Titular who was a naked Liferenter his Demission should reach the Fee it was against reason and John Stewart being dishabilitat when the King granted the Earl of Hooms Right so that there could be no Demission the King being in the Commendators place and could not demit to himself the dishabilitation at least was equivalent to a Demission though it had been necessar as it was not for albeit de facto the King Erected upon demissions yet that he could not after the Abbots death have Erected it or provided another or even during his Life reserving his temporal provision there could be no doubt else the Demission of a Liferenter or Administrator could never give the King Right of Fee which the Resigner had and here the King had the Right of Fee but not the Resigner Yet the Lords foundâ— that seing all Erections by Custome proceeded on Demissions that the Earl of Hoom's not proceeding so and John Stewart's proceeding upon his Demission was preferable and therefore repelled the Defense It was further alleadged that Iohn Stewart had Ratified the Defenders Tack It was answered that was but personal and could not be Relevant against the Defender being a singular Successor It was answered that the Pursuers Interest being but for relief the Defender could satisfie and pay erest upon Assignation and so his singular Title not being absolute might be so purged Which the Lords found Relevant Lord Colvil contra Town of Colross February 27. 1666. THE Lord Colvil being Infeft in the Heretable Office of the Baillerie of Culross by progress from the Earl of Argyl first Baillie who was Infeft by the Abbots before the Reformation having full power of all Jurisdictions Civil or Criminal and of all the Amerciaments Bloods and Casualities to his own behove he does thereupon pursue a Declarator of the Right against the Town of Culross which is within the Lordship of Culross that he had Right to the Bloods and to all Jurisdictions Civil and Criminal amongst the Burgesses thereof It was alleadged for the Defenders absolvitor because their Town was Erected in a Burgh Royal by the King with power of Heading and Hanging and other priviledges of Burghs Royal by vertue whereof they have been in immemorial Possession in Exercing all Jurisdiction Civil and Criminal amongst their own Burgâ—sses The Lords before answer having ordained either Partie to adduce Wâ—â—nesses as to the Possession of their Iurisdiction which being closed the Debate was reassumed upon the Towns Right and Possession It was answered for the Pursuer that he and his Authors being Infeft in the said Heretable Office long before the Erection and before the Anuexation of the Abbacie of Culross to the Crown no Right granted thereafter to the Town could prejudge his established Right especially seing in the very Act of Annexation such Bailleries are expresly reserved and declared to be unprejudged And as to the Towns Possession It was but clandestine and not total for the Baillies did still exercise Jurisdiction even upon Burgesses of the Town committing Bloods in the Town and likewise Strangers committing Bloods as is instructed by his Court-books and Witnesses which is sufficient to hinder Prescription It was answered that the Defense stood yet relevant for the granting of the Bailliery could not be exclusive of the granters own Jurisdiction but cumulative and as the Abbots so the King retained Jurisdiction and might dissolve a part of the Barony which thereby ceased to be within the Jurisdiction of the Bailly of the Baronyâ— and might Erect the same in a Burgh Royall as he has done in the same way as the King after granting an Heretable Sheriff-ship may yet Erect a Barony within the same which may exclude the the Sheriffs if the Baron use diligence The Lords found that the Erection of the Burgh Royall being after the Constitution of the Baillerie could not exclude the same of its Jurisdiction and Casuality unless it had been by Possession sufficient to make prescription and that the Case was not alike as if the Barony of a Baron were constitute within an Heretable Sheriff-ship because the Casualities of the Heretable Sheriff-ship belonged to the King himself and could be only understood without prejudice of subordinat Jurisdiction of Baronies which were
ordinar and known but here the Casualities belonging to the Bailliâ— proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ— the Lord Lauderdales Grand-fatherâ— in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâ—tion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â— years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
Cautioner for the Earl of Hume and was content that Witnesses should be Examined anent the Inhibition and Apprizings being still in the Possession of the Earl of Hume in his Charter Chist but not upon any other ground to take away his Assignation and solemne Right which cannot be taken away by Witnesses but scripto vel juramento and most of these presumptions are but weak conjectures no wayes inferring that Ioussie was payed by the Earl of Humes Means and the great friendship that was betwixt Annandail and Hume alleviats the same it being the cause for which Annandail forbore to take Infeftment or do Diligence thereby to allarum Humes Creditors that his Inhibition would always work his preference and on that same ground did consent to several Creditors Rights there being enough remaining for him and which was an evidence that this Right was generally known and that without it Hume could not give Security The Lords ordained Witnesse sexâ— officio to be Examined upon all the points alleadged for â—learing of the Trust. The Kings Advocat contra the Earl of Mortoun and Viscount of Grandison February 29. 1669. THe Kings Advocat pursues a Reduction of the Rights of the Earldom of Orkney and Zetland granted by the Deceast King Charles the first or by this King himself to the Earl of Mortoun or Viscount of Grandison and produces a Contract betwixt the King and the Earl of Mortoun in Anno 1643. and a Charter following thereupon whereby the Lands are granted and Disponed blench with several extraordinaâ— Priviledgâ—s as having right to the Bullion and other Customs of Goods Imported there and also a Charter in Anno 1646. by the King to the said Earl relating to a Dissolution in the Parliament 1644. containing nova daâ—tus and bearing also blench there is also produced an Infeftment granted to the Viscount of Grandison and after the said Infeftment a Ratification by the Parliament 1661. In the which Ratification there is contained a Dissolution of the Earldom of Orkney and Zetland in favours of Grandison wherein also the Dissolution formerly made in favours of Mortoun in Anno 1644. is particularly Rescinded upon this consideration that neither the King nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed nor Dilapidat without an express aâ—t of his own Ratified by Parliament After this Dissolution in favourâ— of Grandison the King granted no new Infeftment to Grandison The Advocat having holden the production satisfied with the Writs produced Mâ—â—toun and Grandison compeared not at all and some others having publick Rights from them being called did also pass from their compearance and submitted to the Kings favour and compearance being made for some of the Vassals holding of Mortoun they were not admitted because they produced no Wâ—its to instruct there Interest so the Lords proceeded to Advise the Reasons of Reduction which were upon these points First That by the Law and several particular Acts of Parlâ—ament the Patrimony of the Crown being the Lands and Customs annexed to the Crown might not be Disponed by the King unless the samine upon weighty Motives and Considerations had been Dissolved by his Majesty and the Parliament and Dissolutionsâ— made after Infeftments are not valide Parliament 1597. cap. 236. and by the 234. Act of that same Parliament the annexed Property can not be Seâ— otherwise but in Feu Ferm so that the Earldom of Orkney being annexed to the Crown by the annexation produced in Process and the Contract and Charter 1643. being before any Dissolution is absolutely null and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records and though it were it is Rescinded in the Ratification in favours of Grandison in the Parliament 1661. upon so weighty a Reason as the King or his Commissioner not being present And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of privat Rights yet that cannot reach to the Patrimony of the Crown especially seing in that same Parliamentâ— 1661. His Majesty having Revocked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation he might not do to the Derogation of his Honour or Crown the Parliament has Ratified the same Revocation as to all Rights granted since 1637. Contrair to the Laws and Acts of Parliament preceeding 1637. and likewise by an express Act of Parliament it is provided that no Ratification in Parliament shall prejudge the Crownâ— or supply a Dissolution and that none of the Kings Customs which are also annexed can be effectually Gifted The Lords found these Reasons Relevant and proven and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted Pargilleis contra Pargilleis February 26. 1669. UMquhile Abraham Pargilleis having no Children but one Bastard Daughter Dispones some Lands acquired by him to Abraham Pargilleis eldest lawful Son of that Daughter Iohn Pargilleis his Brother Son and nearest Heir pursues a Reduction of that Disposition as being done in lecto and the Defender alleadged that the Defunct went abroad to Kirk and Mercat thereafter unsupported and the Pursuer replying that he was supported and either Party contending for Preference the one that he walked free of himself and the other that he was supported The Lords considering the advantage to the Party that had the sole Probation would prefer neither but before answer ordained Witnesses to be adduced for either Party concerning the Condition the Defunct was in as to Sicknesse or Health when he Subscribed the Disposition and the manner of his going abroad whether free or supported and now the Lords having Advised the Testimonies by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition and that he continued Sick till his Death It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken six days after the Disposition and that after the same he went three times to Calder and about three quarters of a Mile off and that he was helped to his Horse and from his Horse and that he was helped up Stairs and down Stairs but that he walked a foot unsupported in the Mercat of Calder and up and down from my Lords House being three pair of Buts of rising Ground It occurred to the Lords to consider whether the Sickness proven would have been sufficient not being â—â—orbus sonticus or in extremis or whether the presumption of Health sufficient to leige poustie was enough that he came out to Kirk and Mercat albeit the Sickness remained and whether the probation of the Sickness remaining could take away that presumption and whether his being helped to his Horse and from his Horse or up and down Stairs and his Man holding his Bridle as he Rode to and returned from Calder did infer that
poinding the Ground whereby they would be preferred to the Appryzing Iuly 8. 1671. Margaret Scrymzour contra Earl of Northesk By this Decision the Accumulation of Annualrents by the voluntar Disposition was Evacuate DECLARATOR of the expyring of a Reversion upon a clause irritant was found null summarly without Reduction in respect the Decreet bear not the Production of the Instrument of Requisition whereupon the irritancy fell although the Instrument was now produced and the party long in Possession by vertue of the Decreet and albeit the Requisition was expresly libelled upon and that it seemed to be the Clerks omission in not mentioning of it in the production February 22. 1671. Piâ—cairn contra Tennents DECLARATOR OF ESCHEAT was sustained without calling all parties having interest at the Mercat Cross though it was a part of the Style of the Summons in desuetude Iune 23. 1666. Masson contra DECLARATOR OF WARD AND NONEENTRIE should only be pursued before the Lords of Session not before the Exchequer Iune 14. 1665. His Majesties Letter Recorded in the Books of Sederunt DECLARATOR OF THE NVLLITIE of Bonds and Rights to Creditors by a Feear in a Tailzie with a clause de non aliâ—nando was Sustained without the form of a Reduction or Production of the particular Rights Ianuary 21. 1662. Viscount of Stormount contra creditors of Annandale In a Declarator of Property the Defender was not admitted to propone a Nullity in the Pursuers Right or that certification was granted against his Authors Seasine even at the Defenders instance unless the Defender alleadge a better Right Iuly 10. 1662. Lord Frazer contra Laird of Phillorth A DECREET of Removing for not finding caution in absence was found null by Exception in respect the Title Libelled on was not produced but the Infeftment of another Person of the same name fraudfully mentioned in the production so that it was not Sustained as titulus bonafides to give the Possessor the Fruits Iune 21. 1671. Neilson contra Menzeis of Enoch A Decreet being stopped on a Bill was found not to be recalled but only the Extracting thereof to be forborn till the Party were heard on the Grounds of the Bill and that though it lay over several years it needed not wakening Iuly 1. 1671. Broadie of Lethem and the Laird of Riccartoun contra Lord Kenmure A DECREET ARBITRAL was found null as not being within a year of the Submission though it had no time but a power to the Arbiters to meet at their convenience and prorogat but did not prorogat the same February 24. 1665. Mcgregor contra Menzeis A Decreet Arbitral was sustained without Submission in Writ it being proven by the Parties Oath that he so submitted and by the Arbiters Oath that they so decerned though both the Submission and Decreet were only verbal the matter being but of 200. merks February 7. 1671. Hume contra Scot. Here the matter was a Bond of 550. merks Suspended and determined to 200. merks DECREETS OF INFERIOVR COVRTS were found not to be taken away upon Iniquity though it be instantly verified by the Decreet by way of Suspension without Reduction Ianuary 24. 1662. Ker contra Lord Rentoun A Decreet of an Inferiour Court was not Reduced simply because Advocation was produced before Extracting being after Sentence but was Reduced because the Advocation was produced before eleven hours which was the ordinary hour of beginning to sit but the Sheriff sat that day an hour before ordinary which the Lords found sufficient presumption that it was of purpose to prevent the Advocation Iuly 10. 1662. Laird of Lambertoun contra Hume of Kaimes A Decreâ—et of an inferiour Court was not Sustained as in â—oro where a Term was taken by a Procurator to prove a Defense without a Mandat or Writ produced that might inâ—er the same November 24. 1665. Chalmers contra Lady Tinnel A Decreet of an inferiour Court was found null for want of Probation bearing only that the Defender compeared and conâ—essed the debt without proponing any other alleadgeance or deâ—ense and not Subscribing his acknowledgement Iuly 19. 1665. Guine contra Mcken A Decreet of an inferiour Court upon compearance was not found null by Suspension without Reduction though it had visible Nullities and was a small matter Inter pauperes November 21. 1665. Baxters in the Cannongate contra A DECREET OF SESSION was Reduced as null being ultra petita Iuly 21. 1666. Waison contra Miller A Decreet of Session in foro whereby in a Suspension a sum being alleadged paid not instantly verified the Letters were found orderly proceeded conditionally if any thing were produced by such a time it should be received and was not produced after which the Lords would not admit it being now produced in a Reduction of an Appryzing of the said Decreet now in the hands of a singular Successor Iune 16. 1664. Laird of Tillieallan and Condie contra Crawfoord A DECREET OF PARLIAMENT was taken away by double poynding without a Reduction the same being referred to the Lords by the Parliament upon Supplication on this Reason that it was pronunced against a Forefault person alter his death without calling the Kings Officers Iuly 14. 1665. Earl of Argile contra Mcdâ—wgal of Dinolich and Raca A Decreet of Parliament Rescinding a dishabilitation of the Children of Forefault Persons without Citation was Sustained there being no Citation of the Children to the Dishabilitation nor Restitution by way of Grace but in Iustice the Children being Infants incapable of the Crime February 24. 1665. Sir Robert Sinclar contra the Laird of Wedderbâ—rn DELIVERY Vide Chyrographum December 13. 1666. â—â—net Thomson contra Stevinson Delivery of an Assignation was not found necessary to validate the same being granted by a Defunct to his near Relation though not in his Family though it bear not a Clause to be valide without delivery seing it bear a Reservation of his Liferent and a power to dispose evidencing his purpuse not to deliver the same and so importing the Writ to be valide without delivery Delivery of three Dispositions in Tailzie to a Daughters Son was found to be implyed by a Clause in the first dispensing with delivery and seing the Substantials of the rest were the same with the first and only qualified the same conform to the reserved power in the first they were all Sustained though the other two had no dispensatory Clause but so that what was in the first for the benefite of the Heir should be holden as repeated in the rest that by the rest the Heir might not be in a worse case Iuly 23. 1669. Elleâ—s contra Inglesâ—â—â—n Delivery of Bonds of provision to Children is not presumed to have been at or near the date but must be proven to prefer them to posterior Creditors Iuly 22. 1668. Iohnstoun of Shâ—ins contra Arnot DEPOSITATION of a Writ was found probable by the Notar and Witnesses insert where the Writ was not produced by the Party in whose favours it was
valide as to the Taxation it self imposed but without power to add any thing for future expences by the stent but that the Taxation behoved to be â—ifted gratis if payed without a charge and if there were a charge the Lords would modifie competent Expences but did not allow an Imposition to be added to the Taxation December 15. 1666. Lord Colvil contra Feuers of Câ—â—lross Taxation 1633. was found discharged by a general discharge to the Sheriff in the Clerk of Taxations Books without showing the Sheriffs Discharge to the particular Heretors December 6. 1667. Duke of Hamiltoun contra Taxation was found to affect these contained in the stent Roll seing they conveened not and were stented albeit if they had conveened they could have freed themselves their interest being Teinds wholly allocat to the Kirk 〈◊〉 17. 1668. Steuart contra Aâ—cheson Taxation was found not to be due for â—nclosed ground conform to the Act of Parliament 1661. and that the Act of Convention could not derogate therefrom February 29. 1668. Duke of Hamiltoun contra Maxwel of Murâ—ith Taxation and lâ—an burden not singular successors Iune 25. 1668. Inglis contra Balfour Taxation was â—ound not to be due by the Director and Writers in the Chancellary as Depenâ—ents on and Members of the Colledge of Iustice Ianuary 22. 1669. Collector general of the Taxations contra the Director of the Chancellary The Officers of the Mint were also found free by a late exemption eodem diâ— Taxation appointed to be uplifted by Magistrates of Burglis was found only to oblige these who were Magistrates of the Burgh for the time personally by their office and that the Town nor subsequent Magistrates were not lyable for what they uplifted and made not compt for Iune 2â— 1669. Pearson of Balmadie contra Town of Mountress Taxation imposed Annâ— 1665. giving abatement of a third to the temporality of the Westeth Shires was found to extend to the Kings Property there Iuly 14. 1669. Duke Hamiltoun contra the Feuers of the Kings property TEINDS though valide were found not to be debitum fundi affecting singular successors 〈◊〉 20. 1662. Earl of Callander contra Monro Teinds were found not to affect the Heretor where there was a Liferenter Iune 24. 1663. 〈◊〉 contra Laird of Glenrchie The priviledge of being Teind free competent to the Cystâ—rtian order and the like to Templers and Hospitallers as to Lands in their own Labourage was â—ound competent not only to the Temporal Lords of Erection but to their Vassals Iuly 15. 1664. Crawfoord contra Laird of Prestoungrange Teind fish was found due by the Merchants who bought the fish immediatly as they were taken in whole Boatfuls in the same way as if they had intrometted with the whole cropt upon the ground they would be lyable for the Teind December 13. 1664. Bishop of the Isâ—es contra Merchants of Edinburgh Teinds were found due parochâ— notwithstanding of the Kings Gift unless Mortification or Possession thereof were proven Iune 27. 1665. Ferguson contra Steuart of Aâ—heog Teinds may not be drawn summaâ—y upon Inhibition where they were in Tack and not drawn immediatly before but a Decreet must preceed the drawing and therefore parties having a colourable Title the Teinds being so drawn obtained ed Restitution Ianuary 21. 1665. Lairds of Bairfoot and Beiâ—stoun contra Viscoâ—nt of Kingstoun Teind being by long custom payed only as to the half Teind Viz. the 20tâ— Lamb the Heretor or Possessor was not found lyable â—s to bygones for any more February 11. 1665. Scot of Thirlestoun contra Scot of â—roadmeadow Teind of Herring Killings and Ling taken in and about the Isles as the patrimony of the Bishop of the Isles was â—ound not to extend to Killing and Ling taken by the inhabitants betwixt Arran and Hesay they proving immemorial possession free of any Teind November 24. 1665. Bishop of the Isles contra fishers of Greenock Teinds were found not taken away by a Decreet of Parliament ordaining the Titular to â—ell upon payment of such a price it never being offered so that the Teinds remained due till it were payed or offered and upon refusal consigned February 2â— 1669. Earl of Kinâ—ardin contra Laird of Rosâ—yth Teinds of a Paroch were found to belong to the Prebendats of the Chappel-Royal without any other Title but the Books of assumption and three Presentations by the King and that fourty years possession by the Minister did not infer Prescription against the Kings Chappel in respect of the Kings interest and Act of Parliament declaring the Kings interest not to be prejudged by the neglect of His Officers but the said long possession was found sufficient to the Minister for all years preceeding the citation February 1. 1671. Ferguson contra Parochioners of Kingarth THE TENOR of an interdiction being pursued the production of the Letters of Publication was found a sufficient adminicle seing such Writs use not to be retired as Bonds Iuly 26. 166â— Laird of Milntoun contra Lady Milntoun Tenors of Writs proven before inferiour Iudges was found null Ianuary 28. 1663. Laird of Balnagoun contra Mackenzie Tenor of a Registrate Bond admitted to be proved by reply was not found sufficiently instructed by an Extract under the English hands that keeped the Registers at London though his Oath was taken Anno 1658. That it was a true Extract Iuly 27. 1665. Captain Muire contra Frazer Tenor of a Contract of Marriage containing Clauses extraordinary as that the half of the Mans money should befall to the Wife in case there were no Heirs betwixt them was not sustained without Adminicles in Writ albeit the Tenor of it was insert in the stile Book of him that Wrote it and the Tenor was offered to be proven by the Writer and Witnesses insert and though it was offered to be proven that the Husbands whole means came by the Wife Iune 13. 1667. â—arrower contra Hartlay TERCE was found not to extend to a Bond bearing a clause of Annualrent without Infeftment had followed Iune 24. 1663. Scrymzeor contra Murrayes A Terce was not found taken away by an Infeftment in Liferâ—nt not beaâ—ing in satisfaction of the Terce albeit the Liferent was competent and suitable to the parties condition and there was never a Contract extended betwixt them but a Minute Ianuary 27. 1666. Criâ—â—toun and Eleis her Spouse contra Maxwel of Kirkhouse A Terce was found not to extend to Teinds not constitute by Infeftment but was found to extend to a grass yeard let to Tennents it not being a Garden or Orchyard as pertinent of a Tower or Fortalice February 9. 1667 Moncreif contra Tennents of Nâ—wtoun and Zeaman Vide base Infeftment Bell of Belfoord contra A Terce was found to be excluded by a Wifes acceptance of Land in satisfaction of her Terce albeit a part of the Lands accepted proved ineffectual to her her â—nfeftment by her Husband not having been confirmed by the Superiour who was preferrâ—d to her and the acceptance was found
being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents since the Date of the Wodset The Lords having considered the Woodset by which the Wodsetter bare the publick Burden found the said Clause of the Act not extended to make the Defender comptable since the Date of the Wodset but only since the Date of the offer to secure the Wodseter conform to the Act of Parliament by vertue of an other Clauses of the said Act Ordaining all Wodsetters to compt for the superplus and to possesse the granter of the Wodset he finding Caution for the Annualrents or to restrict to his Annualrent Lord Burghly contra Iohn Syme Eodem die LOrd Burghly and his Authors being Infeft by the Abbot of Dumfermling in the Coal-heugh of Keltie with power to win Coals within the bounds of the Lands of Cocklaw and Losodie pursues John Sime Heretor of Losodie for declaring his Right to win Coal in Losodie The Defender alleadged absolvitor because he and his Authors were Infeft in the Lands of Losodie with the pertinents above the Ground and under the Ground long before the Pursuers Authors Right The Pursuer answered that the Defenders Infeftment could not furnish him Right to the Coal of Losodie because it bare no power to win Coal but being only a Feu which is a perpetual Location it reaches not to Coal not being expressed especially seing in the Tenendas all the ordinary priviledges were exprest even of Peit and Turff and Coal was omitted and because the Defenders Chartor bare expresly a reservation to the Abbot and his Successors to win Coal in Losodie for their own proper use allenarly The Defender Answered that the Right of the Land being Feu with the Pertinents did extend to Coal albeit not exprest seing it was not wholly observed according to Craigs opinion and for the Reservation it did further clear the Defenders Right that seing the Abbot reserved only power to win Coal for his own use exceptio firmaâ— regulam in non exceptis whereby the Defender had Right to the remanent of the Coal neither could the exception extend to the Pursuer but only to the Abbot and give to his Successors only to these Succeeding in the Abbacy viz. the Earl of Dumfermling The Pursuer answered that the Defenders Infeftment was Confirmed long after the Pursuers and that the Defenders Confirmation was not of the first Feu but of a second Right from the first Feuar and by the Act of Parliament anent Feus it was declared that Feus since March 1658. not confirmed by the King before 1584. were â—ull at least another Act of Parliament bare expresly that where there were divers Feus granted of the same thing the first Confirmation with the last Feu should be preferable The Lords found the Defense founded upon the Defenders Rights relevant and proven thereby and therefore found the Pursuer had only right to win Coals in Losodie for his own use and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie for his own use only and found the saids Acts of Parliament that by the late Act the Right of the ancient Possessors and kindly Tenents was reserved so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie wherein the Pursuer not being Superiour had no interest and found the Defenders Infeftment that his Authors were kindly Tenents and had a 19 year tack before the Feu Patrick and Joseph Dowglasses contra Lindsay of VVormistoun December 2. 1662. PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother as Executrix to their Father for Compt and Payment of their share of the Executry and also the said Lindsay of VVormistoun as her Cautioner found in the Testament who alleadged no Process against him as Cautioner till the Executrix her self were first discussed Not only by Compt and Sentence but also by Appryzing of her Estate Poynding of her Moveables and if nothing can be condescended upon to Poynd and Appryze at least by Registrate Horning against her Person This being but a subsidiary Action as to the Cautioner The Lords Repelled the Alleadgeance and sustained the Accompt against both superceeding all Execution against the Cautioner till the Executrix were discussed as aforesaid which is both to the advantage of the Cautioner who may concur with the Executor who is only able to make the Accompt and it is also to the advantage of the Pursuers that the Cautioner resume not the Alleadgeances omitted by the Executor and so make new Process and new Probation as oft falls out Dam Marion Clerk contra Iames Clerk of Pittencrieff Eodem die MR. Alexander Clerk his Estate being Tailzied to his Heirs Male he obliged his heirs of Line to Renunce and Resign the same in favours of his Heirs Male which Disposition he burdened with 20000. Pounds to Dam Marion Clerk his only Daughter and Heir of Line The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement whereupon she having obtained Decreet James Clerk the Heir Male Suspends on this Reason That the foresaid Clause did not personally oblige him but was only a real burden upon the Lands and Tenement which he was content should be affected therewith and offered to Assign and Dispone so much of the Tenement as would satisfie the same The Lords found the Suspender personally obliged but only in so far as the value of the Tenement might extend in respect the Clause in the Disposition mentioned the Sum to be payed which imports a personal Obligement and whereby the Suspender accepting the Disposition is obliged to do Diligence to have sold the Tenement and payed her therewith and therefore found the Letters orderly proceeded superceeding Execution of the principal sum for a year that medio tempore he might do Diligence to sell and uplift George Steuart contra Mr. James Nasmith December 6. 1662. GEorge Steuart having obtained the Gift of the Escheat of one Hume pursues a general Declarator wherein compears Mr. James Nasmith having a Declarator depending of the same Escheat and alleadged he ought to be preferred having his Gift first past the Privy Seal and had the first Citation thereupon George Steuart answered that his Gift was first past in Exchequer and the Composition payed in March before the Rebel was Denunced on Mr. James Nasmiths Horning whose Gift past in Exchequer in June only and alleadged that he being postponed through the negligence of the Keeper of the Register whom he had oft desired to give him out his Gift it must be esteemed as truely then done and as to the Citation both being now pursuing he having done full Diligence could not be postponed and produced an Instrument taken against the Keeper of the Register bearing him to have acknowledged that the Gift had been sought from him formerly The Lords having considered the Instrument and that it was after Nasmiths Gift
had died Infeft in the Annualrent if there had been Bairns of the Marriage they Male and Female joyntly and equally behoved to be Served specially as Heirs of Provision to their Father and so Infeft and failzing Bairns Thomas and Margaret behoved also to be so served and Infeft for albeit there needs no general Service where Persons are nominatim substitute in a personal Right requiring no Infeftment yet where there is Infeftment there must be a special Service And therefore found the Father Feear might uplift the Mony or might change the Destination thereof as he pleased and albeit Thomas and Margaret were Infeft nominatim yet they found the Seasine was without Warrand bearing only to Infeft them in case of failzie of Heirs of the Marriage and the Infeftment could only be granted to the Conjunct-feears Iohn Scot contra Montgomery Eodem die JOhn Scot as Assigney to certain Bonds granted by Montgomery to Andrew Robertson charges Montgomery who Suspends upon this Reason that he instantly instructs by a Back-bond that the Bonds is for the price of certain Lands and by the Back-bond it is provided that these Sums should not be payed till the Writs of the Lands were delivered and payment made of some Duties thereof The Lords found the Back-bond being before the Assingation relevant against the Assigney albeit the Bonds were simple bearing borrowed Money Greenlaw contra 〈…〉 Ianuary 15. 1663. GReenlaw being pursued by 〈…〉 for Spuilzie of two Mares in May 1654. alleadged Absolvitor because he was then in Arms for the King and took these Mares for the Service and had warrand from his Officers which he offered him to prove by his Pass and Capitulation produced expressly including him with his Officers who Capitulate The Pursuer answered the Mares were great with Foal and altogether unfit for the Service and if they were specially commanded to be taken it might be instructed by Writ The Lords considering this Capitulation being about that same time found that albeit there had been no Order yet the Defender being then in Arms acting modo militari the Act of Indemnity freed him and would not give occasion to such Process and therefore Assoilzied Tennents of Kilchattan contra Lady Kilchattan Major Campbel and Baillie Hamilton Ianuary 16. 1663. OLd Kilchattan in his Sons Contract of Marriage Dispons the Lands of Kilchattan to his Son young Kilchattan and his Lady in Conjunct-fee whereupon there was Infeftment taken in favours of the Husband and Wife to be holden from the Disponer and of the King but the same was not confirmed till the year 1662. At which time Major Campbel procures a Confirmation of the Conjunct-Infeftment and Seasine thereon which Confirmation hath a Clause insert bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major and thereafter the Lady Confirms the Conjunct-Infeftment simply In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands thereafter Heugh Hamilton Appryzed from young Kilchattan and was Infeft upon this Appryzing about that time It was alleadged by the Lady that she ought to be pre-ferred because she being joyned with her Husband in the Conjunct-Fee and thereupon Infeft it is sufficient to give her the Right of Liferent which is but a personal servitude It was answered first That Major Campbel having procured the first Confirmation which is expresly limit unto his Annualrent must be preferred to the Lady and that such limitations might lawfully be because it being free for the Superiour to Confirm or not or to Confirm a part and not the rest he might Confirm it to what effect he pleased and his Confirmation being extended no further the Lady cannot crave preference because she is now only Infeft in the Lands in question in Warrandice that her principal Lands shall be worth so much and it is not yet declared in what they are defective The Lords in respect the Ladies Right was not Confirmed preferred the Major as to his Annualrents It was alleadged for Heugh Hamiltoun that he must be preferred to the Annualrenter because he being publickly Infeft upon his Apprysing before the Infeftment of Annualrent at least before it was cled with Possession whereby it became a valid Right the King's Charter upon the Apprysing is virtually and equivalently a Confirmation of Kilchattans Infeftment especially in favours of a Creditor who could not perfectly know his Debitors condition which if he had known and given in expresly a Confirmation to the King it would have been accepted seeing the King respects none and therefore the King 's granting of a Charter upon the Apprysing must be interpret equivalent The Lords found that the Charter upon the Apprysing was not equivalent to a Confirmation It was further alleadged for Heugh Hamiltoun that the Confirmation obtained by Major Campbel behoved to accresce to him who had the first compleat Right by publick Infeftment upon the Apprysing and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel was prior yet it was null till it was cled with Possession and therefore if it was not cled with Possession before Heugh Hamiltouns Infeftment the Confirmation must accresce to Heugh Hamiltouns Infeftment The Lords found that the base Infeftment was not null for want of Possession albeit it might be excluded by a publick Infeftment before Possession but found that Heugh Hamiltouns publick Infeftment was not compleat in it self because it put Heugh Hamiltoun only in the place of young Kilchattan who had a null Right till Confirmation Which Confirmation they found did accresce to the base Infeftment being cled with Possession at any time before the Confirmation for at that time it became a compleat Right at which time the Appryzing and Infeftment was no compleat Right and therefore the Confirmation albeit it had not had this restriction accresced to the base Infeftment as being the first compleat Right in suo genere Earl of Roxburgh contra a Minister Eodem Die IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh the point in question was whether or no the Judges for the time or now the Lords of Session were competent to discuss this Nullity of a Decreet of Locality by the Commission for Plantation in that it called the Earls Lands expresly designed to be his Lands and he was not called The Lords found that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction which behoved to be before the Commission it self yet this Nullity being palpable and competent by Exception or Suspension that they might thereupon Suspend simpliciter the Decreet of the Commission Earl of Errol contra Parochioners of Ury Eodem die THe Earl of Roxburgh pursues the Heretors for the Teind from 1648. till 1662. as he who had Right during that tyme by the Act of Parliament 1649. Establishing the
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ— because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâ—dm creaâ— oruâ— but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâ—ght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâ—e sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ— were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ— Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâ—ramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâ—ermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
amongst themselves how dangerous it were if the Creditors or Persons intrusted obtaining Infeftment of an intrusted Estate the Back Bond of Trust being personal would not exclude them and albeit the Person intrusted were not solvendo as in this Case the Intrusted Estate as to the Heirs and Creditors would be inavoidablie lost And some being of opinion that a Personal Exception upon a Back Bond could not be competent to burden or qualifie a real Right or an Action for obtaining thereof But the most part were of opinion that albeit the Right if it were compleat would be real yet this Action for obtaining thereof is but Personal for real Actions are such only which proceed upon real Rights and against the Ground such as upon Annualrents and therefore this being a Personal Action might be excluded or qualified by a Personal Exception upon the Back Bond. And therefore they Adjudged with the Burden of the Back Bond. Earl of Sutherland contra Hugh Gordoun December 1. 1664. THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal that his Right being holden Feu two terms has run into the third and thereby the Right is extinct not only by the Act of Parliament but by a particular Clause in the Defenders Infeftment at least in the Disposition whereupon his Charter and Seasine proceeds There is also called an Apprizer who alleadged that he being a singular Successor and a stranger to his Authors Rights during the Legal unexpyred is not oblieged to possess and cannot omit his Right by his Authors fault or by his own Ignorance The Lords having considered this Case and reasoning amongst themselves upon the difference of a Clause Irritant in an Infeftment Feu and the benefit of the Act of Parliament they found that if the Pursuer insisted upon the Act of Parliament the Defender might purge the Failzie by payment at the Bar but if he insisted upon the Clause in the Infeftment it behoved to be considered whether that Clause was in the real Right by the Charter and Seasine either specially or generally under the provisions contained in the Disposition Or if it was only in the Disposition In which case though it might operat against the Vassal or his Heirs yet not against the Appryzer unless the Seasine had been immediatly upon the Disposition In which case the Disposition serves for a Charter And therefore ordained the Pursuer to condescend and it is like that in favours of the Appryzer being a stranger they would suffer him to purge at the Bar utcunque in this Cause it was not found necessar to cite all Parties at the Mereat Cross albeit the Letters bear so Veatch contra Paterson December 2. 1664. PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause that the Tennents should be relieved of all publick Burdens and having left the Land in 1653. two or three years thereafter he raised a Pursuit against Paterson the Heretor for payment to him of all the publick Burdens he had payed out and renews the same Pursuit and produces the Receipts of the publick Burdens and alleadges that there was a Penalty in the Tack of an hundred pound that he should Possesse Veatch at the Entry of the Tack wherein he failzied The Defender alleadged that it must be presumed that all the Tickets and publick burden was allowed in the Rent or otherwise past from by the Pursuer seing he voluntarly payed his hail Rent Or otherwise all the publick burdens in Scotland payed by Tennent may infer a Distress upon their Masters to repay the same The Pursuer answered that that presumption could not take away his Writ viz. the Tickets produced but if the Defender gave Discharges he ought to have made mention of the allowance of the publick Burdens therein The Lords having considered the Case as of Importance for the preparative found the Defense upon the Presumption Relevant unless the Pursuer instruct by Writ or the Defenders Oath that these Tickets were not allowed in the Rent And as for the Penalty the Lords found that it ought to be restricted to the damnage and that the same was not now probable otherwise then by the Defenders Oath Iames Wilson contra Alexander Home of Linthill Eodem die JAmes Wilson having pursued Alexander Home of Linthill as Sheriff of the Shire for the Debt of a Rebel whom he suffered to Escape In which this Defense was found Relevant that the Rebel in the taking had wounded these that were taking him and had Escaped vi majore The Laird of Clerkingtoun contra The Laird of Corsbieâ— December 3. 1664. SIr William Dick having Appryzed some Lands holden of the Town of Irving and charged the Magistrates to receive him The Laird of Corsbie having Compryzed the same Lands some dayes after was received by the Town the next day after Sir Williams Charge and about a Month after Sir William was also Infeft Clerkingtoun having Right from Sir William pursues Corsbie First for Mails and Duties Corsbie was found to have the benefit of a possessory Judgement by seven years Possession and thereupon was Assoilzied Now Clerkingtoun insists in a Reduction on this Reason that he having first Appryzed and Charged the Superiour they Colluded with the Defender and gave him a voluntar infeftment the next Day after his Charge and therefore his Infeftment though after ought to be drawn back to his Charge and Diligence and he preferred The Defender answered that the Reason ought to be Repelled because the weight of the Reason is the Pursuers Diligence and the Superiours Collusion which hold not because all the Diligence Sir William Dick did was the first Charge upon the Letters of four Forms which bear only with Certification that in Case of Disobedience Letters of Horning would be direct simpliciter and this is no more then a Premonition and put no Obligation upon the Superiour until the second Charge which was Horning Neither did Sir William ever insist any further then the first Requisition The Lords found that the first Charge was sufficient in this case where the Superiour gave an Infeftment before the Expyring of the first Charge and before the second Charge could be given and thereby that a Superiour might prefer an Appryzer though posterior to a prior do what Diligence the prior could But they found that seing Sir William Dick had been silent until his Legal Reversion was Expyred and had not challenged the Defender who was in Possession and thereby had Excluded him from the benefit of Redemption competent to him if he had been found to be but the second Right within the Legal Therefore the Lords found Sir William Dicks Appryzing Redeemable by Corsbie within year and day after the Sentence Mr. Iames Hutcheson contra Earl of Cassils Eodem die MR. Iames Hutcheson having Charged the Earl of Cassils for his Stipend The Earl Suspends and alleadges first that the Charger had no right to the Whitsonday Term 1663. because
the exception of the Act Salvo Jure Scot of Thirlston contra Scot of Braidmeadow Eodem die SCot of Thirlston having right to the Teynd of midshef and pursues the possessor for 24. Years bygone and in time coming who alleadged absolvitor because these Teynds are allocal to the Church coâ—â—orâ— to a Decreet of locality produced bearing such a Stipend and locatting so much of it and for the restâ— that the Minister had the Teynds of midshef It was alleadged that this could not instruct that those whole Teynds were allocal but so much as made up that rest and the Teynd is worth twice as much and therefore the Minister had but the twenty Lamb for the Teynd which is but half Teynd and was lyable to the Pursuer for the rest It was answered that Teynds are secundum consuetudinem loci and if Tyends had never been payed none would be due and if the twenty Lambs was all ever payed they could be lyable for no more The Lords found that before the intenting of the cause they would not allow any more nor then what was accustomed to be payed unless the Pursuer offer him to prove that there was a Tack or use of payment of more which they would allow accordingly Sir William Thomson contra Town of Edinburgh February 14. 1665. THe Magistrats of Edinburgh having deposed Sir William Thomson Town Clerk from his Office on this ground That a Tack of the new Imposition and Excise being set to their Tacks-men which was to have been subscribed by him as Clerk for the Deacons of the Crafts he had given it up to the Tacks-man and had not taken their subscription thereto neither to their own double nor taken another double for the Town albeit the Tack duty was fourscore thousand merks yearly for two years and that it being an uncertain casuality the value of it was most difficult to prove and not but by the Tacks-mens own Oath Sir William raised Reduction on several Reasons especially that the sentence was unjust in so far as it was the puting on of an exorbitant and incommensurable punishment of deprivation from an Office of so great Value upon a Fault of meer negligence or escape and that before the Sentence the Tack-dutie was all payed but four monethes and now all is payed and that Sir William was still willing for to have made up the Towns damnage It was answered that here was no Process to put a punishment commensurable on a Fault but Sir William having by the free Gift of the Town had so profitable a place for his life upon consideration of his Fidelity and Diligence there is implyed in it as effectualy as if exprest that it is ad vitam aut ad culpam so that the cognoscing of the Fault is the termination of the Gift freely given so if their be a fault Justly found by the Town they might well take back their Gift they gave upon that condition implyed for it was not the loss in eventu nor dolus in proposito that made such a Fault else all negligences imaginable would not make it up though a Servant should leave his Masters House and Coffers open if nothing happened to follow yet the Fault was the same and could not be taken away by making up the damnage but here was a Fault of knowledge and importance for Sir Wilâ—iam could not by meer negligence nor ommission give away the Tack to the Tacks-men and neither see them subscribe their own double or any other nor subscribe himself this Fault was likeas in his Office he had a particular gratuitie as Clerk to the excise The Lords repelled the Reason of Reduction and found the Sentence not to be unjust upon this ground because they thought that Sir William being a common Servant who by his Act of admission had specially engadged never to quarrel the pleasure of the Magistrats they as all Masters have a latitude in cognoscing their Servants Faults wherein though they might have been wished to forbear rigor yet having done it by their power as Masters over their Servants The Lords could not say they had done unjustly but found that the committing such a Fault terminat their free Gift being of knowledge and importance but found that if it could be proven that the Tack was duelie subscribed and lost thereafter which was not of knowledge but of meer omission incident to any Person of the greatest diligence they would not find that a sufficient ground to depose him Bishop of Dumblain contra Earl of Cassils February 15. 1665. THe Bishop of Dumblain pursues the Earls Tennents for the Teynds of the Abbacy of Corâ—regual as a part of his Patrimony annexed thereto by the Act of Parliament 1617. The Defender alleadged no Process till the Act of Annexation being but an Act unprinted were produced 2ly Absolvitor because the Defender had Tacks from the King in Anno 1641. And by vertue thereof was in possession and could pay no more then the Duties therein contained till they were reduced It was answered to the first it was nottour and if the Defender alleadged any thing in his favour in the Act he might extract it 2ly The Defender could not claim the benefit of his Tack 1641. because the Bishops are restored to all they possessed in Anno 1637. And so not only Right but Possession is restored to them as then which is as sufficient an interruption by publick Law as if it were by Inhibition ot citation Which the Lords found relevant being in recenti after the Act and never acknowledged by the Bishops Boyd of Pinkill contra Tennents of Cairsluth Eodem die PInkill as Donatar to the waird of Cairsluth pursues removing against the Tennents whose Master compears and alleadges that the Gift was to the behove of the Minor his Superiour who as representing his Father and Guidsire was oblidged in absolute warrandice against Wairds per expressum THe Lords considering whether that could be understood of any other Wairds then such as had fallen before the warrandice or if it could extend to all subsequent Wairds of the Superiours Heir and so to non-entries c. which they thought hard seing all holdings were presumed Waird unlesse the contrary appear and the Superiour could not be thought to secure against subsequent Wairds unlesse it were so specially exprest all Wairds past and to come Yet seing it was found formerly that if the Superiour take such a Gift and be bound in warrandice that the same should accresce to the Vassals paying their proportional part of the expense and composition they found the Defense that this Gift was to the behove of the Superiour relevant ad hunc effectum to restrict it to a proportional part of the expense Hellen Hepburn contra Adam Nisbit February 16. 1665. HEllen Hepburn pursues Adam Nisbit to remove from a Tennement in Edinburgh who alleadged absolvitor because he had a Tack standing for Terms to run It was replyed that the Tack bore expresly if two
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
Cautioner who were free to have pursued for the Tochar and did not and after 40. years she cannot be put to instruct that the Tochar was payed albeit she had been Debitor therefore her self much more when another is Debitor The Lords found both these replyes relevant Mr. John Colvil contra The Lord Balmirino Iuly 6. 1665. MR. Iohn Colvil as Executor confirmed to Umquhil Mr. Iohn Colvil Minister at Kirknewtoun pursues the Lord Balmirino for the Stipend the year 1663. and for the profit of the Gleib The Defender alleadged absolvitor because payment is made bona fide to the intrant before intenting of this Cause It was answered it could not be payed bona fide because the Minister died after Ianuary 1663. VVhich being so notour to my Lord Balmirino to whom the most of the Paroch belongs and he being so near it he ought to have made payment to no other of that year which belonged to the Defunct Minister as his Ann extending to the whole years quia annus inchoatus habeâ—ur pro completo as to the Ann so that if the Minister lived till the first of Ianuary he has that whole year The Defender answered that an Ann is only due to the VVife and Bairns of the Defunct Minister and this Minister had none 2ly That the point is so dubious in Law he knew not that it would be his unless he had lived till Whitsunday 3ly The benefit of the Gleib must be the intrants and falls not under the Ann as a part of the Stipend no more then the Manss The Lords repelled the Defense as to the Stipend and found it belonged to the Executor as nearest of kin and that the Defunct surviving the first of January gave him that whole year but found that the Gleib did not fall under the Ann nor did belong to the Defunct but only the Crop thereof if it were sowen by himself before he dyed Earl of Argyl contra Mcdougalls of Dumolich and Ziner Iuly 14. 1665. THe Earl of Argyl having raised a double poynding in name of the Tennents of certain Lands calling himself on the one part and Mcdougals on the other as both claming right to the Mails and Duties Mcdougals produce a Decreet of Parliament whereby they having pursued the late Marquess of Argyl alleadging that he had obtained the Right and Possession of these by Force and Oppression during the troubles whereupon his Rights were reduced and they restored to their Possession The Earl of Argyl produced his Seasine upon the Kings Gift with two Dispositions of these Lands granted to his Father one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred Mcdougals produced a disclamation of the Process in name of the Tennents and alleadged no Process because the Tennents who were pursuers past from the pursute It was answered that their names was but used that the Parties might discusse their Rights and so they could not disclame it being ordinar to use Tennents names in double poyndings It was answered that there was no Reason that Tennants should be forced to make use of their names to intervert their Masters Possession The Lords found that the Tennants could not disclame especially the possession being but late by Decreet of Parliament and was contraverse It was further alleadged for Mcdougals that there was nothing particularly lybelled as Rents due by the Tennants and therefore there could be no sentence The Lords repelled the alleadgeance and found the Sentence might be in general to be answered of the Mails and Duties as is ordinar in Decreets conform It was further alleadged for Mcdougals that seing this double poynding was in effect now used as a Declarator of Right no Process thereupon because in all Declarators Law allows the Defenders 21 days upon the first Summons and six on the next that they may prepare and produce their Rights and here there is but one Summons on 6 days 2ly No Process because Mcdougals being founded upon a Decreet of Parliament my Lord Argyl produces no Title but only a Seasine not expressing these Lands 3ly Decreets especially of Parliament cannot be taken away but by Reduction and not thus summarly It was answered that my Lord Argyl insisted here for taking away the pretended Decreet in Parliament and restoring the King and Donatar to the possession of the Lands so that in effect it is not so much a Declarator of a Right as a possessory Judgement And as for the Title it is sufficient to produce a Siasine seing in the Decreet of Parliament My Lord Argyls Right and possession is quarrelled as wrong and therefore was acknowledged to have been and seing Mcdougals produces no other Right and the King's Advocat concurres and if need beis my Lord Argyl offers to prove the Lands in question are parts and pertinents of the Lordship of Lorn exprest in his Seasine and albeit this be pretended to be a Decreet of Parliament yet by Sentence of Parliament since it is remitted to the Lords and is in it self visibly null as having been intented against my Lord Argyl and pronounced after his death and Forefaulture without calling the Kings Officers The Lords repelled these Defenses in respect of the replyes James Mathison contra Harie Gib Eodem die JAmes Mathison having obtained a Decreet before the Commissars of Edinburgh against Gib he Suspends and alleadges it was not a cause consistorial being a bargain of Victual and that it was not probable any other ways but by his Oath now after 12. or 13. years In respect of the Act of Parliament anent house Mails and others which comprehens this case The Lords repelled the alleadgeance and found that bargain of Victual not comprehended under that Act of Parliâ—ment James Borthwick contra Janet Skeen Iuly 15. 1665. JAmes Borthwick being Infeft in the Lands of Oversneip pursues Reduction and Removing against Ianet Skeen the Liferentrix It was alleadged that the Feer being minor non tenetur placitare super haereditate paterna And for the Liferenter that the minor was oblidged to warrand her Liferent-right and her Possession was the minors Possession so that if her Right were reduced and she removed the priviledge of the minor were altogether overthrown It was answered That the priviledge was personal and stricti juris and was to be extended to Majors and as for the warrandice it was never sustained as a ground to exclude a Reduction because warrandice would be inferred against a Minor which is but a personal obligement and not haereditas The Lords repelled the alleadgance for the Liferenter Who alleadged further that her Right being Reduced the Fee was absolute in the person of the Minor who would not suffer the Liferentrix to be removed but she did possesse by the Minors tollerance It was answered that the Pursuers Reduction behoved to accresce to him and his Right and not to the Minors Right that he behoved to enter to the Liferenters possession which would not prejudge the Minor for if
over-rule his Deputs for whom he was answerable and therefore was oblieged to Reside that albeit he did not constantly sit yet he might advise with his Deputs in important Cases and the Lieges might have access to him to complain in case of the Deputs Malversation and as to the power of Deputation it self and the Injunctions The Lords found that the Defender was in bona fide to enjoy these Priviledges till it was declared notwithstanding he was required to the contrair but as to the future they found that he ought to reside and make use of no Deputs without the consent of the Archbishop but whether that should be only pro re nata or by a warrand for such Persons not only upon necessar occasions mentioned in the injunctions but also in others that the Deputs might ordinarily sit and advise with the Commissars in Cases of importance The Lords were of different judgements and recommended to the Bishop in common to consider what was fit in that Case but declared only according to the Injunctions without interpretating how far the Deputation should reach Children of the Earl of Buchan contra Lady of Buchan February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment It was alleadged absolvitor because their was neither Law Statute nor Custome of this Kingdom oblidging a Mother to Aliment her Children 2ly Albeit there were she offers her to admit them in her Family and to entertain them according to her means but can never be oblidged to pay a modification in Money out of the Family for in all Cases of Aliment of Wives or Children against Parents the offer to accept and Aliment them in the Family according to the Parents Means doth alwayes exclude Modification as was lately found in the Case of Sir Andrew Dick and his Son It was answered that the Law of Nature is a part of the Law of this and all other Civil Kingdoms and according thereto the Lords do alwayes decide in Cases now occurring where there was neither Statute nor Custome and if Aliment be due the manner and measure is in arbitrio judicis who may justly ordain their Children to be bred from their Mothers seing she hath miscarried and Married a deposed Minister It was answered that the Law of Nature without our Custome is no sufficient Law to us and does not induce obligationem civilem but only pietatem affectum upon which ground it is that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters which insinuats that there was no such Law before and if the Law of Nature be the adequat Rule we are oblidged to entertain the Poor and all in distress and therefore they might pursue us thereupon 2dly There is no Reason to put it in arbitrio judicis whether a Child should be Educat with the Parent who must Aliment him even upon pretence of the Parents miscarriage for that being the indispensable Right of Parents to educat their Children as they see cause especially who demand Aliment of them it ought not to be in the arbitrament of any Judge unless it were a Parliament and this arbitriment would lay the Foundations to encourage Children to desert their Parents and to claime Aliment out of their Family and to pretend the Parents miscarriages as unfit Persons to be bred with and not breeding them in a fit way which accusations were prohibit by the Civil Law and never admitted by our Custome for albeit the Lords may appoint the way of Education of Pupils their Parents being dead yet Tutors have no such interest as Parents The Lords found the Mother oblidged to Aliment the Children jure naturae which was sufficient to infer this Civil Obligation and Action but found that the offer of Alimenting them in her Family was sufficient according to her means and they could demand no Aliment nor Modification extra familiam For they found that the Lords had thus sustained Aliment to Children against theîr Fathers not upon the Act of Parliament which is competent against all Liferenters and Donatars without consideration of their being Parents but super jure naturae which they found would not extend to the obligation of Charity and which had no definite rule but at the discretion of the giver and was not allowed as a civil obligation by any Nation Grant contra Grant February 24. 1666. GEorge Crant having Appryzed a Wodset Right from Grant of Mornithe and thereupon obtained a Decreet of Removing and Mails and Duties against Grant of Kirkdails Reduction was raised thereof and of the ground of the same viz of the Wodset Right on this Reason that the one half of the Sum was payed and the Wodset renunced pro tanto long before the Appryzing It was Replyed that there was an Inhibition for the Sum whereupon the Appryzing proceeded after which Inhibition if any payment was made or Renunciation granted the samine was reduceable ex capite Inhibitionis It was answered that all that the Inhibition and Reduction thereupon could work was in so far as might extend to the satisfaction of the Sum and now they were willing to satisfie the whole Sum cum omni causa It was answered that no satisfaction could now be accepted because Appryzing having followed upon the samine and being expired and no satisfaction being offered within the Legal or the time of the Reduction it cannot now be admitted It was answered that the Inhibition could not only work that nothing done after the same should be prejudicial to the Sum but altered not the Case as to the Appryzing led long thereafter unless the Inhibition had been raised upon the Appryzing The Lords found that Inhibition could not be taken away or satisfied by payment of the Sums after the expiring of the Apprizing wherein the President remembred of a former Case that even in the obtaining of the Reduction ex capite Inhibitionis the offer to satisfie the Sum whereon it proceeded was repelled In respect an Appryzing thereupon was expired Sir Robert Sinclar contra Laird of Waderburn Eodem die JOhn Stewart Son to the Earl of Bothwell being Abbot and Commendator of Coldinghame the Earl being Forefaulted in Parliament his Son was dishabilitat to brook any Lands or Goods in Scotland whereby Iohn fell from the Right of Provision of the Abbacie Thereafter the King annexed the Abbacie of Coldinghame which was excepted from the general Annexation 1587. to the Crown excepting the Teinds and gave Right of Reversion both of Lands and Teinds to the Earl of Hoom who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn Thereafter Iohn Stewart was by Act of Parliament restored and the former Act of Dishabilitation rescinded whereupon Iohn Stewart demitted his temporal Provision in the King's hands and got it Erected in an Heretable Right he thereupon Infeft Dowglas of Ivleck for relief of Sums Sir Robert Sinclars Lady as Heir to him
prejudged as to the constituting an Annualrent in the point of Right not being called yet as to the Point of Possession the Right being constitute he might 3dly Albeit the Heretor must be called when his Ground is first affected with an Annualrent in attinenda possessione yet if the Annualrenter be in possession he may continue the same without calling the Master as well as in Tyends Thirlage c. And here the old Precept of Poynding was evidence sufficient of a prior Possession in re tam antiqua The Lords found that the Decreet was Possession sufficient to interrupt Prescription Minister of contra Lord Elphinstoun Iune 16. 1666. MInister of pursues the Lord Elphinstoun for the Viccarage Teinds of his Lands in his Paroch It was alleadged absolvitor because he brooked these Lands by immemorial possession without paying any Viccarage and so had prescribed Exemption and Liberty It was answered that the Viccarage being due de jure cummuni desuetude cannot take them away nor can any Prescription give Right to them unless it were by a Title as if the Lands had been Templar Lands or belonging to these Orders which payed no Teynds but were exempted by the Cannon Law and therefore in the last Session it was found in the Case of the Earl of Panmoor that 40. Years did not prescribe the Right of Parsonage except for the Years preceeding the 40. It was answered that there was a great difference betwixt Parsonage and Viccarage which is Local and Consuetudinary which is therefore only found due according to what has been accustomed to be payed so that the Teynd of Lint Hemp Geess Stags Swine Fruits Fishes are only due in these parts where they have been so accustomed and therefore as custome may take away a part so it may extinguish the whole The Lords found the Defender could be no furder lyable then for that Viccarage which was commonly payed throughout all the Kingdom viz. Stirk Lamb and Wool and sustained not the same for Milk or any other particular But the Defender upon the twenty one of Iune having Supplicat to be further heard alleadging that it was a common Case that when the Lands were most in Labourage and the Viccarage small and not considerable that through the whole Country Viccarage was never craved time out of minde The Lords stopped Interlocuquutor till they were further heard Thomas Begg contra Patrick Nicoll Iune 22. 1666. THomas Begg gave Commission bearing that he had delivered a certain Sum of Money to Patrick Nicoll to buy Wair for him in England whereunto there is subjoyned the said Patrick his acceptance bearing Sea hazard excepted Thomas Begg now pursues for the Money or Wairâ— Patrick Nicoll alleadged absolvitor because he offers him to prove that shortly after the said Commission he went upon the Voyage and that the Ship was taken and the whole Goods there wherein it must be presumed the Pursuers Money was It being impossible for the Defender to prove that that individual Money was there and yet he is willing to make faith that it was there It was answered that the Defender had Factor-fee and should have transmitted the Money by Bill as he did some of his own and at least he might prove that he had a considerable Sum of Money in the Ship The Lords sustained the Defense and Repelled the Reply and that the Defender being trusted by the Pursuer he could not refuse his Oath in Supplement that his very Money was taken seing he neither might nor could show what money he had when he entrèd to his voyage unless the Pursuer alleadged that he gave the Defender allowance for the Exchange Earl of Eglingtoun contra Laird of Cunninghamhead Iune 23. 1666. THE Earl of Eglingtoun pursues the Laird of Cunninghamhead for the Teynds of Peastoun who alleadged absolvitor for 60. libâ— Yearly which by Decreet of the Plat he payed to the Minister of Irving and produces the Decreet It was alleadged that where the Decreet bore out of the Teinds it was meer Error of the Clerk and disconform to the ground of the Decreet which was a tripartite Contract whereby the Earl of Eglingtoun agreed for so much Victual out of his Teynd beside what was to be payed by the Town of Irving and Heretors and the Heretors oblidged them and their Heirs and Successors of these Lands to pay so much Money which cannot be understood out of their Teynd they being oblidged as Heretors and the Teynd not being theirs but the Earl of Eglintouns who was oblidged so much out of his Teynds besides these oblidgments It was answered that this being to lay a burden of Stipend upon the Stock is most unfavourable and the meaning thereof cannot be inferred unless it had born expresly out of the Stock especially seing the Teynd was under Tack and it was ex gratia for them to pay any more then their Tack-duty but now when the Tacks are expired the Earl cannot crave the whole Teynd and lay this burden upon the Stock 2dly The Lords cannot alter the express tenor of the Decreet of Plat which was a Commission of Parliament The Lords found that the tripartite Contract as to this did not burden the Teynds and therefore seing the Plat could only decern out of Teynds they found that by this Contract the Heretors behoved to relieve the Teynds of this burden out of their Stock Arbuthnet contra Mary Keith Eodem die Andrew Arbuthnet having gotten a Gift to the behove of the Viscount of Arbuthnet of the Marriage of the Heirs of Iohn Keith of Pâ—tten did thereupon pursue the two Heirs Portioners one of them being dead he insists now against the other for her part who alleadged no Process because none was called to represent the other who is thus far interessed that the Probation of the avail of the Marriage against the one will prejudge the other The Lords Repelled the Defense and found it would not prejudge the other against whom new Probation behoved to be used Patoun and Mercer contra Patoun Eodem die JOhn Patoun as Heretor of the Miln of Mukart pursues for the abstracted Multures and alleadges that the Miln is the Miln of the Barony and the Lands a part of the Barony and that they being in immemorial Possession of Intoun Multures of one peck of the Boll and that above thirty years ago there was a Decreet arbitral by the Marquess of Argyle Decerning these Multures The Defenders alleadged Absolvitor because they were Infeft before the Pursuers Right produced cum molindinis and as to the Act of Court the whole Tennents were not present and the Decreet Arbitral it is under Reduction The Lords sustained the Pursuers Condescendence reserving the Reduction as accords Masson contra Iune 27. 1666. MAsson pursuing a Declarator of Escheat It was answered that all Parties having Interest were not Cited at the Mercat Cross conform to the Warrand of the Letters It was answered that was but stilus curiae long indesuetude and it
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
The Tower of Babel falling upon the Roof made it Ruinous It was answered That was an accident without the Pursuers fault and the Tennent ought to pursue these whose Tenement it was that fell The Lords found the Reason was not Relevant to Liberate from the Mail unless the Suspender had abstained to Possesse but found it Relevant to abate the Duties in so far as he was Damnified Oliphant contra Hamiltoun of Kilpoty Eodem die WILLIAM OLIPHANT having obtained a Decreet for Poynding of the Ground against Hamiltoun He Suspends on this Reason that he was neither Decerned as Heir nor Possessor but as appearand Heir to the Heretor and was never Charged to Enter Heir The Lords Repelled the Reason and found this Action being real was competent against the appear and Heir without a Charge William Oliphant contra Hamiltoun Eodem die OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent It was alleadged Absolvitor from the bygones before the Pursuers Right because his author was Debitor to the Defender in a liquid sum equivalent It was answered that the Pursuer was singular Successor and no personal Debt of his Authors could infer Compensation of a real Right against him The Lords found that the bygain Annualrents were moveable and compensable with any liquid Debt of the Pursuers Authors contra Brand. Ianuary 3. 1667. Chapman having left his Pack in custody with Brand In Dundee about ten or twelve dayes after Brand opened the Pack and made use of the Ware The Chapman now pursues him for a Spuilzie who alleadged Absolvitor because the Pack was put in his hands for security of a Debt due by the Pack-man and he being informed that the Pack-man would not rerurn did by warrand of a Baillie in Dundee cause four of the Neighbours Inventar and Price the Ware It was answered non relevat for though the Pack had been impignorat the Defender could not appryze it summarly but behoved to take a Sentence to Poind the same The Lords Repelled the Defense It was further alleadged that there could be no Spuilzie nor Oath in litem of the Pursuer because there was no Violence It was answered that the Oath in litem is Competent whether it were a Spuilzie or a breach of Trust actione deposâ—â— It was answered that the Oath in litem being granted mainly because Parties injured by breach of such Trusts cannot be put to prove by VVitnesses that which is taken from them none being oblieged to make patent his Pack or other privat Goods to VVitnesses yet where there is another clear way to prove the quantities viz the Oathes of the four Persons who opened the Pack there is no reason to put it to the Pursuers Oath especially seing their Inventar is not the eight part of what he claimes The Lords admîtted the Pursuers Oath in litem reserving their own Modification with liberty to the Defender if he thought fit to produce what of the Ware he had and to produce these four Persons that the Pack-man may Depone in their presence Earl of Sutherland contra Earls of Errol and Marischal Eodem die THere being a Decreet of Parliament ranking the Nobility whereby Earl of Sutherland was put after the Earls of Errol and Marischal In which Decreet there is a Reservation to any to be heard before the Judge Ordinar upon production of more ancient Evidents whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking containing an Improbation of all VVrits Patents and other Evidents granted to the Defenders or their Predecessors whereby they are Constitute or Designed Earls they did produce the Decreet of Ranking and the Earl of Errols Retour whereupon the Pursuer craved Certification contra non producta after all the Terms were run The Defenders alleadged no Certification because they had produced sufficiently by producing the Decreet of Ranking and their Retoures and the Pursuer had only produced his own Retoure which was since the Decreet of Ranking so that the Decreet of Ranking was sufficient to exclude all his Titles produced It was answered the Retour being the Sentence of a Court Serving this Earl as Heir to his Fore-Grandsire Grandsires Grandsires Fore-Grandsires Goodsire who is Designed Earl by King Alexander the second It was sufficient in initio litis Likeas he did formerly produce the Original Evidents and which was now in the Clerks hands and might have been seen by the Defenders if they pleased The Lords found the Retoures not sufficient alone and Ordained the rest to be Reproduced and seen by the Defenders Smeatoun contra Crawfoord Eodem die UMquhilâ— Patrick Smeatoun granted a Disposition to Crawfoord his VVife and her Heirs of a Tenement of Land whereupon nothing followed during her Lifetime her younger Brothre Iames Crawfoord Served himself Heir-General to her and obtained a Decreet of Implement against Iohn Smeaton as Heir to his Father and having used Horning thereon obtained Adjudication against Smeatoun and his Superiour and thereupon was Infeft which Right was Disponed by him with consent of William Crawfoord elder Brother to the VVife The said Iohn Smeatoun Dispones the same Tenement to Alexandor Smeatoun and he is Infeft and thereupon pursues a Reduction of Iames Crawfoords Retour and of all that followed thereupon in consequence on this Reason that the Disposition to the VVife belonged not to Iames Crawfoord her younger Brother who was Heir of Line but to William Crawfoord her elder Brother as Heir of Conquest and so the Service was null following thereupon and the Pursuer being first Infeft from Smeatoun he hath the only Right because any Infeftment to William the Heir of Conquest will be posterior It was answered that it was jus tertij to the Pursuer whether the Heir of Line was Served or Infeft or the Heir of Conquest likeas the Heir of Conquest did concur and had consented to the Disposition The Lords found not the Defenses Relevant but considering the Case as Calumnious seing it was but of late cleared by Decisions whether the Heirs of Line had right to Dispositions without Infeftment they did superceed to give answer but ordained the Defender to give in what Evidences he could give of the onerous cause of his Disposition Paul Henrison contra Laird of Ludquharn and Captain Seatoun Ianuary 4. 1667. THe Debate betwixt Paul Henrison and Ludquharn was this day heard again and it was alleadged that the Kings Proclamation declared War against the King of Denmark and his Subjects Ita est the Owners of the Ship are Subjects to the King of Denmark because it is notour that this Isle is a part of the Kingdom of Denmark and till of late was in the same condition as any other of his Territories and albeit the Duke of Holstein have now an Interest by Possession or Infeodation that alters not their subjection to the Crown of Denmark but the same is still presumed unless they will positively prove that the same is alter'd and the Duke of
in before but superceeded Execution in the Removing as to the House and Mains Possest be Milntoun till Martimass that in the mean time he might Insist in his Reprobators as he would be Served Countesse of Carnwath contra Earl of Carnwath February 22. 1667. THe Countess of Carnwath Insists in her Action of Poinding the ground It was alleadged for the Defender that the Countess Seasing was null not being Registrate conform to the Act of Parliament It was answered that nullity cannot be proponed either be the Granter of the Infeftment or any Representing him or by any person who is obliged to acknowledge the Infeftments but the Earl is such a Person that albeit he Brooks by a Disposition from his Father yet his Infeftment containes this Express Provision that his Father at any time during his Life may Dispone the Lands or any Part thereof and grant Infeftments Tacks or Annualrents thereof so that this being unquestionably an Infeftment he cannot quarrel the same upon the not Registration but if his Father had granted an Obliegment to Infeft the Defender could not have opposed the same much more the Infeftment being Expede It was answered that the Provision did not contain an Obligation upon the Defender to Dispone Ratifie or do any Deed but left only a Power to his Father to Burden the Lands which can only be understood being done legitimo modo and therefore the Infeftment wanting the solemnity of Registration is in the same Case as if there were no Infeftment and so is null The Lords Repelled the Defense and found the Seasine valide as to the Defender in respect of the foresaid Provision in his Infeftment Earl of Southesk contra Lady Earls-hall Eodem die THe Earl of Southesk being Infeft in certain Lands upon the Water of Eden and the Salmond Fishing peruse Declarator that Earls-hall hath no Right thereto The Pursuer produces an Infeftment in Anno 1558. in which after the Land is Disponed there followes a Clause una cum Salmonum in piscationibus in aquâ de Eden with a novo damus it was alleadged for the Defender that he hath the â—like Declarator against the Pursuer which he repeats by way of Defense and produces an infeftment of the same year of God bearing in the dispositive Clause una cum Privilegio piscandi in aqua de Eden solito consuet and alleadges that by vertue thereof he hath good Right to Fish in the Water and that he had been in Immemorial Possession by vertue thereof It was answered First That this Clause cannot carry Salmond Fishing which is inter Regalia and must be specially Disponed 2ly The Defenders Right though in the same year of God is yet some Moneths Posterior to the Pursuers and as to the Defenders Immemorial Possession it cannot consist nor give Prescription without a sufficient Title by Infeftment and it hath been frequently Interrupted by the Pursuer It was answered by the Defender that he and the Pursuer and the Laird of Reiris having three Thirds of one Barony all lying Rin-ridge the Kings granting the Pursuer his Third cum Salmonum piscationibus added to the Lands as a Pendicle thereof it cannot be understood exclusive of the other two Third Parts of the same Barony likeas Reiris hath the same Clause in his Infeftment and albeit Earls-halls Clause be not so express yet it not being the common Clause in the Tenendas cum piscationibus but in the Dispositive Clause of this special Tenor it must needs comprehend Salmond Fishing or otherwise it would have no Effect verba autem interpretanda sunt cum effectu and albeit the Clause were dubious yet it hath been in long possession Immemorial which sufficiently Instructs the Accustomed Fishing to have been before the same 2ly As to the Anteriority of the Pursuers Infeftment the Defenders offers to prove that his Predecessor was Infeft before him with this Clause that is in his own Infeftment produced 3ly Albeit the Defenders Right were Posterior yet it is sufficient to give him a Joint Right to the Salmond Fishing with the Pursuer because he offers him to prove that he hath fourty years peaceably Possest the Salmond Fishing as the Pursuer hath when ever they were in the River The Lords found that the Clause in the Defenders Infeftment albeit it had been prior to the Pursuers could not give Right to the Salmond Fishing in prejudice of the Pursuers expresse Infeftment of Salmond Fishing unlesse the Defenders Infeftment had been clede with Immemorial and fourty years peaceable Possession which being so alleadged by the Defender the Pursuer offered to prove Interruption and therefore a Term was granted to either Party to prove Mr. Iohn Elies contra Wishart and Keith Eodem die MAster Iohn Elies having Inhibit Elizabeth Keith his Debitor she did thereafter acquire a VVodset of certain Lands within the Shire where the Inhibition was published and thereafter upon payment of part of the Sums the VVodset Right was Renunced pro tanto and the rest being Consigned there is now a Process of Declarator of Redemption wherein Mr. Iohn Elies Compears and produces a Declarator at his Instance for declaring the Sums of the VVodset to belong to him and alleadges no Declarator of Redemption till the whole Sums contained in the VVodset Consigned be given up to him without respect of the payment or Renunciation of a part because it being done after his Inhibition it was null and so is craved to be declared by his Declarator It was answered First That Inhibitions can reach no further then to the Lands the Person Inhibit had the time of the Inhibition but not unto Lands he should happen to acquire after the Inhibition because the Inhibition bearing that the person Inhibit should not Sell or Alienat to the prejudice of the User of the Inhibition albeit she should Sell what thereafter he acquired the User of the Inhibition were in no other case then when the same was published the Land being both gotten and gone thereafter and if that were the effect of Inhibitions every provident person would Publish and Registrat them in all the shires of the Kingdom because they can only reach Lands lying in the shire where they are Registrated which was never done neither was it ever Decided that Inhibitions reached Lands acquired thereafter 2ly Inhibitions can never hinder persons having Right of Reversion to pay the Sums and the Wodsetter to Renunce because Inhibitions only Restrain Debar and Inhibit to Sell c. But doth not hinder him to pay his Debt or upon payment of the Wodset Sums to Discharge the Sums and Renunce the Lands these being Deeds necessar to which he might be compelled and if this hold no man might saflie pay an Heretable Band having Infeftment of Annualrent without searching the Registes which the most cautious man never did and for this alleadged the expresse Opinion of Craig that Inhibitions hinder not Discharges of Heretable Sums or Renunciations of VVodsets It was
the annus deliberandi be most ordinary in such Cases yet it is not limited thereto but must take place also in all Cases where the reason of the Law holds viz. where the Defender must be either absent and suffer Sentence or if he compear must found himself upon the Defuncts Right and so behave himself as Heir as in this case the Defender cannot alleadge Articles of Deduction or Discharge but upon the Defuncts Right for finding out of which Right the Law giveth him a year to inquire and use Exhibitions ad deliberandum ne incidat in damnosam haereditatem and therefore during that year he cannot be prest contestare litem The Lords sustained the Defense It was further alleadged by the Pursuer that now the annus deliberandi was past It was Duplyed for the Defender that albeit it was now past the Citation was used within the year so that that Citation cannot be sustained The Lords refused to sustain the Citation and found no Process till a new Citation but here the day of compearance filled in the Sâ—mmons was also within the year which if it had been after the year us like the Summons would have been sustained especially seing the Decision of this case extending the year of Deliberation to Declaratorie Actions in Custom had not occurred nor been decided Minister of Dalrymple contra Earl of Cassils Iune 27. 1667. THe Minister of Dalrymple having Charged the Earl of Cassils for his Stipend he Suspends on this Reason that he offered payment of the Bolls in the Ministers Decreet conform to Linlithgow Measure which was the common Measure of Scotland by the Act of Parliament and is by Act of Parliament the measure of Ministers Stipends It was answered that the Ministers Decreet of Locality was indefinit and mentioned no measure the meaning thereof was sufficiently cleared because it was offered to be proven by the Earls Oath that he payed ever since the Decreet of Locality being 15 years conform to the measure of Air and that he knew it was the common Custom of that Countrey to pay all Ministers with that measure The Suspender answered that his use of payment either by mistake or benevolence of more then what he was due could not oblige him to the future especially where the Minister did not found upon his decennalis triennalis possessio but upon a Decreet of Locality wherein though the measure be indefinit it cannot be understood to be any other measure then the common measure of Scotland seeing the Act of Parliament anent Ministers Provisions bears expresly that they shall have eight Chalders of Victual Linlithgow measure The Lords having considered the Decreet of Locality and that it did not extend to eight Chalders of Victual but to three Chalders of Victual and 400 pounds which is the rate of four Chalders of Victual at 100 pounds the Chalder as is ordinarly Rated by the Commission in that place of the Countrey they found the use of payment and common Custom of the Countrey sufficient to declare it to be the measure of Air seing by that measure it would not come up to eight Chalders of Victual Mr. Iames Dowglas contra William Leisk Iune 28. 1667. MR. Iames Dowglas as Donatar to the Liferent Escheat of William Leisk pursues a special Declarator against the Tennents for Mails and Duties It was alleadged for William Leisk that the Lands in question were Appryzed from William Leisk the Rebel and the Superiour granter of this Gift Charged to Infeft the Appryzer long before the Rebellion to which appryzing William Leisk has Right during his Life so that the Charge being equivalent to an Infeftment as to the time and to the anteriority of the Infeftment and by drawing it back to the Charge doth prefer the Appryzer from the time of the Charge It was alleadged for the Donatar that albeit a Charge against the Superiour be equivalent to an Infeftment in some cases Yet in other things it is not equivalent as it is not a Right sufficient for the Appryzer to Remove Tennents and therefore the Vassal is not denuded thereby otherwise the Superiour could have no Casuality after such a Charge because the Appryzer not being Infeft his Liferent could not fall It was answered for the Defender that albeit this consequence should follow it is the Superiours own fault that did not receive the Appryzer It was answered non constat it was his fault for he might have just reason to Suspend and albeit it were his fault the Law hath not determined this to be his Penalty to lose his Casualities The Lords Repelled the Defense and found the charge on the Appryzing did not denude the former Vassal but his Liferent fell and affected the Ground Sir Alexander Hume contra Creditors of Kello Eodem die SIr Alexander Hume being Donator to the Forefaulture of Iohn Hume of Kello did obtain a Warrand for Retouring the said Iohn five years in Possession of certain Lands before the Forefaulture but the Inquest served Negativeâ— and now he pursues a Reduction of the Retour on this Reason that it is contrary the Testimonies of the Witnesses adduced It was alleadged no Process because the Reduction of Retours is only competent by a Summons of Error in Latin under the quarter Seal It was answered that is only in the Case where the Assizers are insisted against for their Error and the constant Custome of the Lords has been to sustain a Summons of Reduction before themselves of this method The Lords sustained the Defense and refused Process albeit it was known to them that the Custom has been contrary of a long time before Sir Iohn St. clair contra Iohn Cowper Iuly 2. 1667. UMquhil Mr. Iohn Rae having two sisters and Heirs portioners the one married to Robert St clair and the other to umquhil Alexander Cowper the said Alexander and his Spouse as Heir portioner assigns to Robert St. clair a number of her Brothers Bands And likewise as Heir assigns him to the Maills and Duties of a Tenement of Mr. Iohn's for such Terms and in time coming Sir Iohn St. clair having appryzed Robert St. clairs Right pursues Iohn Cowper as Representing his Father to hear it declared that this perpetual assignation to the Mails and Duties did import an absolute Disposition of the Lands and did carry in consequence an obligment and all things to make the Disposition effectual and so to renew it into a legal Form containing a Procuratory and Precept The Defender alleadged absolvitor because his Father had granted no Disposition but only an Assignation and so the Defender could be obliged to do no further The Pursuer answered that this assignation behoved to be understood cum effectu and to be done to denude the Granter and to settle the Right of the Duties in the Purchaser and therefore whosoever gives the Right gives all necessaries in his power to accomplish it and the Informality of a Clerk ought not to Evacuat the Pursuers Right The
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n
a perpetual Tack and would not Sustain the samine in part and found it totally null and that the Receiving of the former Duties was no Homologation thereof Captain Wood contra Boyneilson Eodem die CAptain Wood having taken a Ship of Norway whereof Boyneilson was Master called the Raphael Prize she was Adjudged by the Admiral and there is now Reduction intented of the Decreet of Adjudication in fortification whereof the Privateer Insists upon two grounds First That this Ship belongs to the Kings Enemies with a considerable part of the Loadning viz. 1500. Dails as is acknowledged by the Skippers Deposition 2dly Whereas she pretends to have been bound for London upon the Kings Proclamation giving liberty to all his Subjects to import Timber from Sweden and Denmark by the Ships and Mariners in these Countreys though then in Enimity yet the said Proclamation requires that all such Ships shall find Caution at the Custom-house to return straight to England without going aside into an Enemies Countrey and requires the Lord Admirals Pass but this Ship at the time of the Adjudication did not pretend to the Duke of York's Pass but only to the Duke of Richmond's Pass as Admiral of Scotland whereas the Proclamation warrands only the Duke of York to give such Passes neither doth he produce now any Pass from the Duke or any extract of a Pass from him It was answered for the Strangers and for Iohn Dyson Citizen of London that they having Contracted conform to the Kings Proclamation for importing Timber and having found Caution and obtained a Pass conform to the Proclamation the Ship and Loadning cannot be made Prize upon the Skippers Oath that they had Aboard 1500. Dails belonging to him and the Company First Because the Skipper is testis singularis 2dly By the constant Custom Sailers have Portage Dails allowed 3dly The number of the Dails is insert but with Figures and might easily have been altered after the Testimony from 500. by adding one and from 150. by adding a Cipher neither of which would have been sufficient to infer Confiscation 4thly Iohn Dyson Citizen of London having bona fide Contracted with the Stranger for importing 6000. Dails albeit the Skipper had foisted in some more it cannot infer a Confiscation of a Loadning belonging to him the Kings Subject Contracting bona fide whatever it may infer as to the Strangers Ship and his own Dails As to the second point anent the wanting the Duke of Yorks Pass there is produced a Testificat of the Dukes Secretaries and the Ship having been Bought from the Privateer by Captain Lye who carried her to London the Duke gives her a Pass to return from London to Norway bearing that he had given her a former Pass to come into England there is also produced His Majesties Letter that he is sufficiently informed that this Ship is Authorized by a sufficient Pass and therefore ordering her to be Restored with Testificats from the Customers that Caution was found there and the Testimony of the Skipper and a Sea-man taken at London bearing that Captain Lye having Bought the Ship from a Privateer desired the Skipper then in Prison to show him the Duke of Yorks Pass which when he shew'd him he pulled it out of his Hand to secure the Ship against all which it was objected that all these were impetrat after the Ship was declared Prize and that it is the more suspitious that at the time of the Adjudication there was not so much as mention made of the Duke of York's Pass though the Duk of Richmonds Pass was rejected as not sufficient without the Duke of Yorks and that as yet there is no Extract of the Pass out of any Record and as for his Majesties Letter it hath been impetrat suppressa veritate and cannot take away a Parties privat Right but is salvo jure as are all Acts of Parliament done by His Majesty and three Estates incitata parte much more such a Letter as the Lords found in the case of the Castle of Riga and though there had been a Pass from the Duke of York it is likely not to have been of this Date but for a former Voyage The Lords found the alleadgeance for the Privateer that there was 1500. Dails Aboard belonging to the Kings Enemies Relevant to Confiscat the Ship and Dails but not to Confiscat Iohn Dysons Dails His Majesties Subject who acted bona fide if he can make out a Pass and before answer to that point grants Commission to Sir Robert Murray to try if there were a Record keeped of the Dukes Passes and if therein there was a Pass for this Voyage and to send down the duplicat thereof compared with the Principal and Signed by Sir Robert and to try at the Records of the Custom-house if Caution was found there and if there was no Records of Passes to take the Oath of Captain Lye concerning the Pass alleadged taken by him and ordained the Members of the Court of Admirality to be Examined upon Oath whether the Testimonies in Figures for 1500 Dails was given in Figures as it bears and found the Skippers Testimony alone to prove not only against himself but the Owners because he was entrusted by them in this Affair Duke Hamiltoun contra the Feuars of the Kings Property Iuly 14. 1669. THe Duke of Hamiltoun as Collector-general of the Taxations having Charged the Feuars of the Kings Property for payment of this current Taxation several of them Suspended upon this Reason that by the Act of Convention there is abatement given of a third part to such Shires as in the West and South in regard their Retours are higher then the rest of the Countrey and yet these of the Kings Property are Charged for the whole It was answered that that abatement cannot extend to the Feuars of the Property because in all former Taxations they were distinct both from the Temporality and Spirituality and therefore though by the Act of Convention the Temporality of these Shires be eased it will not extend to the Property especially seing the Reason of the Act cannot extend to them for the Feuars of the Property did bear no Taxation till the year 1592. and then there was a Commission granted for Retouring them and that Complaint of the high Retours of the Shires being then known these of the Property would doubtless endeavour to have easie Retours It was answered that the Act of Convention expresly Regulating the Taxation both as to the Spirituality and Temporality it cannot be thought but that these Members did comprehend the whole and seing the Property cannot be of the Spirituality it must be of the Temporality which hath the abatement as to these Shires without exception and albeit the Property was lately Retoured yet there being no Rule to estimate a Merk-land or Pound-lands Retour by or how many Pounds of real Rent makes a Pound of Retour there could be no other Rule but to make the Retour of the Property
incapacitat them then to Dispone their Heretage or to take it any way from their nearest Heirs 2dlie Albeit the Disposition had been Subscribed and Delivered in leige poustie yet the Seising not being taken till the Defunct was on Death-bed Recognition cannot be incurred because it is not the Disposition but the Seising that alienats the Fee and infers Recognition The Pursuer answered First That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or who is not to consider whether the Vassal was sick or whole but whether he hath indeavoured to withdraw himself and his Heirs in the investiture from their Superior 2dlie Death-bed is never competent by way of exception but by way of Reduction 3dlie The Disposition being in favours of the Disponers only Daughter reserving his Liferent albeit it wants a Clause dispensing with the Delivery it being Subscribed in leige poustie it is as valide as if it had been then Delivered and if need be 's offers to prove that it was Delivered in leige poustie to the Lord Frazer for the Pursuers use so that albeit Seising had been taken when the Disponer was on Death bed Recognition must be incurred because the Vassal should not have granted a Precept of Seising and Delivered the same without Reservation and the having of the Precept of Seising being always accounted a sufficient Warrand for taking of Seising and that the Warrand was given at the Delivery of the Precept albeit the Seising was taken when the Disponer was on Death-bed yet the Warrand was granted when he was in leige poustie by the Precept which bears in it self to be an irrevockable Power and Warrand to take Seising so that the Vassal had in his leige poustie done quantum in se fuit to alienat this Waird Fee The Lords found that if the Disposition containing the Precept was Delivered to the Vassal without Reservation in the Disponers leige poustie it would infer Recognition though the Seising were taken after his Sickness and found that if the Disposition and Seising were on Death-bed it would exclude Recognition by way of exception Recognition not being a Possessory but a Petitory or Declaratory Judgement but seing it was alleadged that the Disposition was Delivered to the Lord Frazer the Lords before answer ordained the Lord Frazer to Depone from whom and when he Received the said Disposition and whether he had any Direction to take Seising thereupon or any Direction to the contrair and also that the Bailly Atturney Notar and Witnesses in the Seising should Depone by what Warrand they did proceed therein Earl of Crawfoord contra Rig Iulie 21. 1669. THe Earl of Crawfoord pursues Rig for payment of the half of the Expence of the Building a Park Dike belonging to the Earl in so far as it is Built or to be Built upon the March betwixt him and Rig and that upon the Act of Parliament 1661. anent the Parking and Inclosing of Ground whereby for the Encouragement of them that Inclose it it is provided that whatever part of the Park or inclosure falls upon the March that part shall be Built upon the equal Charges of both the Heretors The Defender alleadged Absolvitor because the March betwixt the Earl of Crawfoord and him is not a dry March but a Burn and the Act cannot be understood but of dry Marches otherwise though there were a Water intersected the Heretor Building a Park Dike upon his own side of the Water might require his Neighbour on the other side of the Water to pay the half of his Charges 2dlie Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground upon which no Dike can stand The Pursuer answered that he opponed the Act of Parliament and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water which oftimes is dry and cannot hinder a Stone Dike to be Built in the very Channel of it and for the other if the Pursuer Build not the Dike the Defender will not be lyable The Lords found the Reply Relevant and ordained the Stripe of Water either to be wholly without the Dike or if the Defender pleased that it run a space within the Dike and a space without the Dike that either Party might have the benefit of Watering thereat Town of Perth contra the Weavers of the Bridg-end of Perth Eodem die THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs or otherwise to pay a Duty accustomed to be payed by the Weavers there to the Town for that Liberty conform to the several Tickets produced and that conform to the 159. Act Parliament 1592. Entituled the Exercise of Crafts within Suburbs adjacent to Burghs forbidden It was alleadged for the Defenders and Sir George Hay thier Master Absolvitor because the said Act of Parliament has been in continual desuetude and was never in use 2dly Though it were yet effectual yet it can only be understood of such Suburbs as have no Priviledge but where the Suburbs are contained in any Burgh of Regality or Barony or within any Barony though having no Burgh the Priviledges of these Erections warrants the exercise of all Crafts-men so that these Websters Living within the Barony of Pitcullen cannot be upon that pretence hindered from Exercising their Trade The Pursuer answered that he opponed the Act of Parliament being general and that it was a standing Law unrepelled and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving did preserve the Act in vigour at least as to this Burgh The Defenders answered that these Weavers being in no Incorporation the Tickets granted by any of them could prejudge none but themselves and being without the consent of the Heretor cannot infer a Servitude upon his Barony without his consent more then his Tennents could infer a Thirlage without his consent The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony and that the Tickets of the Weavers could not infer a Servitude upon the Barony and therefore Decerned only against the granters of the Tickets personally for the Duties contained therein Iames Gray contra Margaret Ker Iuly 23. 1669. IAmes Gray having Apprized certain Lands and having Charged the Superior pursues for Mails and Duties Compearance is made for Margaret Ker who produces her Infeftment granted by her Husband the common Author prior to the Apprizing and craves to be preferred The Pursuer answered that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null To the which it was answered that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed The Lords Repelled the alleadgeance and found the Relicts Infeftment null and not sufficient to defend her Possession Mr.
majore and that they had not failed in their duty having had a sufficient Tolbooth having four Doors and the inmost an Iron Door and that all being Locked the Person Incarcerat having gotten secretly conveyed in some Mason or Wrights Tools had in the night broken all the Locks and escaped It was answered that the Defense was not Relevant neither had the Magistrats done their duty and diligence for they ought to have had Chains and Cat-bands upon the utter-sides of the Doors with Locks thereon unto which the Incarcerat Person could not reach and it was alike how many Doors they had upon the Tolbooth with their Locks inward for the same means that would break up one would break up twenty and if such a pretence should liberat the Magistrats it were an easie way to elide all Captions and let all Persons for Debt free It was answered for the Town that the having of Cat-bands without Closed and Locked was not the custom of their Tolbooth who past all memory did never Lock the outward Chains but upon Malefactors and such is the custom of Edinburgh and other Burghs of Scotland The Lords having before answer ordained Witnesses to be Examined on both parts anent the condition of the Tolbooth and finding thereby that there was no Cat-bands or outward Chains Locked when this Prisoner escaped they found the Magistrats had not done their duty and so Decerned against them Alexander Naper contra The Earl of Eglintoun Feb. 14. 1671. THere was a Bond granted by the Laird of Minto as principal Lugtoun Iames Creichtoun and the Earl of Eglintoun Cautioners in Anno 1641. to Adam Naper and his Spouse in Conjunct Fee Alexander Naper as Heir to his Father pursues this Earl of Eglintoun as Heir to his Father for payment who alleadged Absolvitor because Minto having Disponed his Estate to his Son under express Provision to pay the Debt the same was satisfied by Minto younger and was retired lying by him a long time or by Robert Vrie who had the Trust of Minto's Affairs and Writs and Minto younger being lapsus bonis and Robert Vrie being dead the Pursuer had either practised with Minto upon his necessity or upon Robert Vries Friends to give him back the Bond and for evidence that the Bond has been satisfied and retired First It had lyen dormant above this thirty years without either payment of Annualrent or any Diligence 2dly The late Earl of Eglintoun being Forefault by the Usurpers his Creditors were appointed to give in their Claims or else to be excluded and yet no Claim was given in for this Debt and therefore craved that Witnesses might be Examined ex â—fficio for proving of the points foresaid The Pursuer answered that it was an uncontroverted principle in our Law that Witnesses could not prove payment of any Debt due by writ nor take the same away and as to the pretences adduced by the Defender they import nothing for the delay of seeking payment or Claiming the Sum was because the said Adam Naper was with Montrose in the War and his Heir remained a Minor and his Wife was Married to another Husband The Defender answered that the Wife was Liferenter of the Sum and she and her second Husband would certainly have sought her Annualrent or Claimed the Sum which takes off the excuse of the Pursuers Minority and albeit Writ be not taken away by Witnesses ordinarly yet where the matter is so ancient and the Evidences so pregnant the Lords uses not to refuse to Examine Witnesses ex officio The Lords ex officio ordained Witnesses to be Examined anent the being of the Bond in the Custody of Minto or his Doers being a matter of Fact but would not Examine them anent the payment made thereof George Bain contra The Bailzies of Culrosse Eodem die GEorge Bain pursues the Bailzies of Culrosse for payment of the Debt of a Rebel whom they had suffered to go free up and down their Streets whereupon he had taken Instruments against them and protested that they should be lyable for the Debt seing squalor carceris is justly introduced against Debitors that will not pay their Debt and the Magistrats of Burghs may not take it off in whole or in part and produced a Practique observed by Durie upon the 27. of March 1623. Smith against the Bailzies of Elgine where the Prisoner being suffered to walk freely upon the Streets till he obtained a Charge to set to Liberty the Magistrates were found lyable The Defender alleadged Absolvitor because he offers to prove that this Prisoner's going out was necessary viz. He being a Person altogether Indigent was permitted sometimes to go and mendicat his Bread and once to go to the Burial of a Child of his own and immediatly thereafter the Pursuers having taken Instruments the Rebel was put in Waird and continued there till he Died. Which the Lords found Relevant to Liberat the Burgh Apilgirth contra Locarbie Eodem die IN a Compt and Reckoning at the instance of Apilgirth for declaring two Apprizings Led by Lockerbie satisfied this Query was moved by the Auditor whether a Sum Consigned by umquhile Apilgirth for Redeeming a part of the Lands Wodset to Lockerbie conform to the Reversion in the Wodset might be proven to be uplifted by Apilgirth from the Consignator by the Oath of the Consignator and of the Clerk of the Process who Received the Money or only by Writ Apilgirth the Consignator being Dead The Lords considering that it was ordinar to take up Sums Consigned for Redemption of Wodsets being upon the peril of the Consigner did appoint the Oath of the Consignator and Clerk to be taken for proving that the Money was taken up by Apilgirth from the Consignator and that Apilgirth and not the Consignator put it in the Clerks hands and that the Clerk gave it up again to Apilgirth The Earl of Argile contra The Laird of Mcnaughtan Feb. 15. 1671. THe Earl of Argile pursues the Laird of Mcnaughtan to Remove from the Lands of Benbowie as being a part of the Earls Barony of Loâ—how The Defender alleadged Absolvitor because he prâ—duces a Seising dated in Anno 1527. proceeding upon a Precept of clare constat from the Earl of Argile in favours of Alexander Mcnaughtan as Heir to Giller Mcnaughtan of the four Merk Land of Benbowie by vertue whereof the said Alexander and his Successors to this day have Possessed and so have a sufficient Defense upon prescription by the Act of Parliament 1617. anent prescription The Pursuer answered that the Defense is not Relevant as it is founded upon the naked Seising only because by the said Act of Parliament there is required to all prescriptions of Land a Title in Writ preceeding the 40. years Possession which Title is dâ—stinguished in two cases First In relation to Rights acquired titulo singlari whereunto is required not only a Seising but a Charter which although they may be excluded by an anterior or better Right
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
Pursuer and all the Leidges were Inhibite to block or buy from him so that the Pursuer has acted against the Prohibition of the Letters and cannot pretend that he purchased bona fide being so publickly Inhibit and the Inhibition put in Record he neither should nor did adventure to purchase without special warrandice to which he may recur 4thly Such Solemnities when omitted may be supplied for there is nothing more ordinar than in Summons to add any thing defective in the Executions and abide by the truth thereof and many times these Solemnities are presumed done though not exprest as a Seasing of a Miln was Sustained though it bear not Delivery of Clap and Happer yet bearing a general with all Solemnities requisite it was Sustained and a Seasine of Land though it bear not Delivery of Earth and Stone seing it bear Actual Real and Corporal Possession and the Clause â—acta erant hac super solo c. ut moris est Yea in other Solemnities which the Law expresly requires as three â—lasâ—s in the Executions of Horning and six knocks and the affixing of a Stamp have all been admitted by the Lords to be supplied by proving that they were truely done though not exprest in the Execution Though Horning be odious and penal inferring the loss of Moveables and Liferent therefore it ought much more to be supplied in the case of an Inhibition which is much more favourable to preserve the Croditors Debt and here the Messenger hath added to the Execution that a Copie was Delivered and Subscribed the same on the Margent and it is offered to be proven by the Witnesses in the Execution that it was truely so done The Pursuer answered that there was nothing more essential in an Execution than delivering of a Copy for showing or Reading of Letters was no Charge but the delivering of the Copy was in effect the Charge and albeit Executions which require no Registration and may be perfited by the Executor at any time may be amended as to what was truly done Yet where Executions must necessarlie be Registrate within such a time else they are null after the Registration the Messenger is functus officio and his assertion has no Faith and seing the giving of a Copie is essential and if it be omitted would annul the Execution so after Registration it canâ—ot be supplied because in so far the Execution is null not being Registrate debito tempore for as the whole Execution would be null for want of Registration so is any essential part and whatever the Lords has supplied in Hornings yet they did alwayes bear that the same was lawfullie done according to the Custom in such cases and this Execution does not so much as bear that Phillorth was lawfullie Inhibite but only according to the Command of the Letters which do not express any Solemnitie and it hath been found by the Lords that a Horning being Registrate and not bearing a Copy Delivered it was found null because that part was not in the Register nor was it admitted to be supplied any way but that it were proven by the Oath of the Keeper of the Register that that Clause was upon the Margent of the Execution when it was presented to the Registister and was only neglected to be insert by him which shows how necessarâ— a Solemnity the Lords have accompted the giving of a Copy and Registrating thereof And if Solemnities of this kind be by Sentence passed over it will not only incourage Messengers to neglect all accustomed Solemnities but course of time may incroach on all other Solemnities whereas if this be found necessar none will ever hereafter omit it or any other necessar Solemnity The Lords found the Inhibition null and that the Delivering of a Copy was a necessar Solemnity which not being contained in the Register they would not admit the same to be supplied by Probation in prejudice of a singular Successor Acquiring for a just price Hadden contra The Laird of Glenegies Eodem die HAdden being Donator to the Marriage of the Laird of Glenegies pursues Declarator for the avail thereof The Defender alleadged Absolvitor because by an Act of Parliament 1640. It was Declared That whosoever was killed in the present Service their Waird and Marriage should not fall Ita est Glenegies was killed during the Troubles at the Battel of Dumbar It was Replyed that the present Troubles could not extend further than to the Pacification Anno 1641. After which there was peace till the end of the year 1643. 2dly The Parliament 1640. and all the Acts thereof are Rescinded It was Duplyed That the Troubles were the same being still for the same Cause and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered that this was a publick Law and the salvo was only of particular concessions by Parliament to privat Parties The Lords found that the Act 1640. reached no further than the Pacification by which the Troubles then present were Terminate The Lords Demured in this case upon remembrance of a Process before them at the instance of the Heirs of Sir Thomas Nicolson against the Heirs of the Laird of Streichen upon the Gift of Streichens Waird to Sir Thomas who Died the time of the War being Prisoner by occasion of the War and after Pacification that they might have seen what they had done in that Case but did not get the Practicque and the Parties being agreed they Decided in manner foresaid wherein this was not proponed nor considered that the foresaid Act was always esteemed an Exemption after the Pacification during the whole Troubles and no Waird for Marriage was found due that time though many fell during the War and if it had not been so esteemed the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement in so dangerous a War if it had not been commonly thought that the first Act stood unexpired Murray contra The Earl of Southesk and other Appryzers of the Estate of Powburn Eodem die JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn led at the instance of Mr. Thomas Lundie pursues thereupon for Mails and Duties Compearance was made for the Earl of Southesk and posterior Apprizers after Year and Day who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Lords of Session at the desire of the Debitors may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent the Debitor Ratifying their Possession and now the Posterior Appryzers having Appryzed omne jus that was in the Debitor craved that the first Appryzer might Restrict himself to his Annualrent and they preferred to the rest of the Duties It was answered that
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
principally but by a third party Iuly 5. 1662. Drummond contra Campbel A DESIGNATION of a Gleib by way of Instrument of a Nottar was not Sustained without Production of the Testificate of the Ministers Designers December 17. 1664. Paterson contra Watson Designations of Gleibs must first be of Parsons before Bishops Lands though they were Feued before the Act anent Manses and Gleibs and built with Houses so that the Feuar must purchase as much ere the other Kirk Lands be affected Ianuary 25. 1665. Parson of Dysart contra Watson Designation of one to be Tutor Testamentar by his own acknowledgement was found not to prove against him where by the Testament the contrary appeared Iune 10. 1665. Swinâ—â—â—n contra Notman Designation of a Manse was Sustained by Intimation out of the Pulpit or at the Kirk door warning the Heretors thereto as being the constant custom though some of the most considerable were ouâ— of the Countrey Ianuary 28. 1668. Minister of Hassendene contra Duke of Bucclâ—â—gh Designation of a Gleib was Sustained though done but by two Ministers the Bishops Warrand being to three without 〈◊〉 Quâ—runâ— unless weighty reasons upon the prejudice of parties were shown February 7. 1668. Minister of Cockburnspeâ—h contra his Parochioners DEVASTATION total was found to Liberate from publick Maintainance February 20. 1663. Baxters of Edinburgh contra Heretors of Eastlouthian DILIGENCE was not required of a Person whose Name was not intrusted in the Infeftment of Annualrent to make him Comptable for ommisâ—ion but only for intromission December 18. 1666. Cass contra Wat. A DISCHARGE to one of more Contutors was â—ound not to Liberate the rest except in so far as satisfaction was given by the Party discharged or in so far as the other Contutors would be excluded from Recourse against the Party Discharged December 19. 1668. Seatoun contra Seatoun A Discharge of Rent not designing the Writer thereof was found null unless the user thereof designed the Writer because it was of 80. pounds of Annualrent yearly and that thereby an Infeftment of Annualrent would be cled with Possession and preferred to another Annualrent Iuly 14. 1665. Scot contra Silvertounâ—il A Discharge being general was found not to extend to a Sum Assigned by the Discharger before the Discharge albeit it was not intimate before unless it were proven that payment was truly made for this sum February 3. 1671. Blair of Bagillo contra Blair of Denhead A DISPOSITION of Moveables was preferred to an Arrestment on an horning anterior to the Delivery seing the Disposition was before the Horning and the delivery before the Arrestment Iuly â— 1662. Bouse contra Baillie Iohnstoâ—â— A Disposition was Reduced on the Act of Parliament 1621. as in fraudem creditorum though the Disponer was not Bankrupt and that he had reserved the power of a considerable sum to sell Land to pay his debt which the Creditors might affect seing the Creditors ought to have Preference according to their Legal diligence on the whole Estate till payment February 6. 1663. Lord Lour contra Earl of Dundee Dispositions of Heretable Rights are only Reducable upon the Act of Parliament against Bankrupts and not by exception or reply though betwixt Father and Son in re parvi momenti viz. 100. pounds Iune 19. 1663. Reid contra Harper A Disposition by a Husband to his Wife of an additional Ioynture she being sufficiently provided before was found Reduceable at the instance of anterior Creditors albeit the Husband was no Bankrupt but because he had no Estate un-liferented or affected albeit the Reversion was much more worth nor the Creditors Sums but the Relick offering to purge the prejudice by admitting the Creditor who had appryzed to possess Lands equivalent to his Annualrent he Assigning to the Relick what he was satisfied by the Ioynture Lands and with this provision that if the Legal expired she should not be absolutely excluded The Lords found the offer sufficient February 10. 1665. Lady Craig and Greenhead contra Lord Loure A Disposition omnium bonorum without any cause onerous and without delivery was found not sufficient to exclude the necessity of Confirmation and paying of the Quote Iune 23. 1665. Procurator-fiscal of the Commissariot of Edinburgh contra Fairholm A Disposition omnium bonorum though with possession was â—ound not to exclude the Quote and Confirmation seing it bear a â—eversion to the Disponer during his Life to dispone of the Goods notwithstanding Iuly 4. 1665. Commissar of Saint Andrews contra Laird of Bousie A Disposition of Land was found to carry all Right that was in the Disponers Person and to import an Assignation to a Reversion which needed not intimation seing the Seasine was Registrat in the Register of Seasines December 5. 1665. Beg contra Beg. A Disposition of Lands was found imported by an Assignation to the Mails and Duties in all time coming against the Heir of him that granted that Right and that the Heir was obliged to renew a compleat legal Disposition with a Procuratory of Resignation and Precept of Seasine Iuly 2. 1667. Sinclar of Hirdmanstoun contra Cowper A Disposition by one Brother to another of his whole Estate bearing for satisfying of his debts enumerat and containing a power to the Purchaser to satisfie what debts he pleased and to prefer them was found valide and not fraudulent in so far as extended to the Purchasers own Sums due to him and for which he was Cautioner for his Brother as if it had born these to be paid primo loco and thereupon one of the Creditors whose debt was enumerat in the Disposition was postponed to the Acquirers own debt and cautionry till they were first satisfied Ianuary 8. 1669. Captain Newman contra Tennents of White-hill and Mr. Iohn Prestoun A Disposition was Reduced because given by a weak person to him who was lately her Tutor ante redditas rationes and done of the same date with a Contract of Marriage whereby she was married to his Nephew who got the Disposition and died ere he was Married albeit he who got the Disposition was her Mothers Brother who Educat and Alimeâ—â—ed her and the Pursuer of the Reduction was her Grand-Fathers Brothers Son who had not noticed her but she was an ignorant person half deaf February 18. 1669. French contra Watson A Disposition of Moveables in Writ bearing onerous causes expressing a Sum and others generally was fouâ—â— not to prove the cause onerous by the Narrative being 〈◊〉 dulent leaving nothing to other Creditors nor 〈…〉 by the Acquirers Oath but also by the Oaths of the 〈◊〉 whom payment was made November 18. 1669. Henderson contra Anderson A Disposition of Lands bearing the Buyers Entry to be at Whitsonday and to the Cropt of that year was found not to extend to the Cropt of Corn that was Sowen and standing on the Ground that year the time of the Buyers Entry or to any part of the Rent payable for the Land fâ—om the Whitsunday before
Roxburgh DONATAR of Forefaulture obtaining Decreet of Parliament upon fewer dayes citation then are required by Law Reducing an Infeftment on this Ground that it is holden of the Forefault person base un-confirmed and so excluded by the Forefaulture and not upon the five years possession of the Forefault person as heretable Possessor The Lords Sustained the Decreet February 22. 1665. Marquess of Huntly contra Gordoun of Lesmore A Donatar of single Escheat though excluded by the diligence of the Creditors of the Rebel before declarator upon debts before Rebellion was found not to extend to prefer an appryzing of a Wifes Liferent led against her Husband as having right thereto jure mariti in prejudice of the Donatar of the Husbands single Escheat though the Appryzing was before Declarator for a debt before Rebellion seing the Liferent had tractum futuri temporis and is not as Moveable Sums Iuly 18. 1668. Earl of Dumfreis contra Smart DOVBLE POINDING being raised in Name of Tennents by one of the Parties competing the same was sustained though the Tennents did disclaim the same and that the other party was their present Master his possession being but of late and controverted it was also sustained though there was no particular duties libelled but in general to be answered of the Mails and Duties as is ordinary in Decreets conform Iuly 14. 1665. Earl of Argile contra Dinloch and Rara A Double poynding calling two Ministers and preferring one the other being absent was found not irreduceablâ— by the Act of Parliament anent double poindings seing the Decreet was only general without expressing the Teinds in question and so was only found valide as to what was uplifted but not in time coming without having a Right Iune 15. 1667. Gray contra IN DVBIISâ— interpretatio facienda contra proferentem qui poâ—uit sibi legeâ—â— dixisse clarius Iuly 29. 1665. Dowglas contra Cowan EIECTION vide Clause in a Tack December 19. 1661. Dewar contra Countess of Murray Ejection was not sustained at the Instance of an Heretor by the Tennents ceding the Possession to a Stranger seing the Tennent pursued not and that Tennent was not in natural possession but both were to compet for the duties that party having given an obligement to cede his Right December 21. 1661. Montgomry contra Lady Kirkcudbright Ejection at the instance of Heirs infants who had an old Infeftment but were not Infeft themselves was Sustained for re-possessing albeit the Defender obtained Decreet of removing against their Mother and entered thereby though the Decreet bear to remove her self â—airns Servants c. The Pursuer being then in her Family February 19. 1665. Scots contra Earl of Hume Ejection was sustained upon putting the Pursuer out of his House and Land Naturally possessed by him though the Ejecter obtained Improbation against the Pursuer and thereupon Removing seing he entered not legally by Letters of Possession But this was not extended to the Lands possest by Tennents who were induced to take Right from the Ejecter to give violent profits of these Lands Iuly 25. 1668. Campbel contra Laird of Glenureâ—y ERECTION granted by the King erecting Kirk lands into a Temporal Lordship was found not to be habilis modus while the same was not vacant but in the hands of a Commendator albeit he was dishabilitat to brook any Estate by his Fathers Forefaâ—ture at the time of the erection seing his dishabilitation was thereafter rescinded in Parliament because he was no ways accessory to his Fathers crime whereupon his Temporal Provision was validate and the erection medio tâ—mpore was postponed to a posterior erection to the Commendator himself upon his own dimission February 24 1666. Sinclar contra Laird of Wedderburn ESCHEAT single was found to reach a sum due as the Liquidation of an obligement not to alienate Lands which was found moveable quo ad fiscum albeit it came in the place of the Right Heretable which would have belonged to the Heir February 4. 1663. Laird of Philorth contra Lord Frazer An Escheat gifted by the King was excluded by a Creditor who arrested during the Rebels life and pursued to make forthcoming after his death he having none to represent him in mobilibus dying at the Horn and so needed no Decreet establishing the debt in one representing the Defunct and calling the Representatives in the action for making forthcoming albeit the Arrestment was laid on after the Rebellion but before declarator and for a debt contracted before the Rebellion February 19. 1667. Glen contra Hume Escheat was found to carry a Bond bearing annualrent the Rebellion â—alling before the first Term of payment of the annualrent Iune 26. 1666. Dick contra Ker. Vide Donator of Escheat Escheat was not burdened with debts contracted after Rebellion February 24. 1669. Countes of Dundâ—e contra Straâ—town Vide Gift of Escheat AN EXECVTOR pursuing a debitor of the Defuncts was not excluded by Compensation because that debitor had taken Assignation from the Defuncts Creditor after the Defuncts death seing thereby the Defuncts debitor might prefer one of the Defuncts Creditors to another which neither a Debitor nor Executor can do but according to their diligence February 14. 1662. Children of Mouswal contra Lowry of Maxwelstoun In a Competition of Executry of Defuncts amongst their Creditors all who do diligence within six Moneths of the defuncts death by Confirming themselves Executors Creditors or intenting any Action against the Executor or Intromettor should come in pari passu by Act of Sederunt February 28. 1662. An Executor was found lyable to pay a Creditor of the defuncts albeit it was the price of Land sold to the defunct by a Minute without restricting the debitor to the Heir who would only get the disposition or causing the Creditor dispone the Land to the Executor in lieu of the Moveables but reserving to the Executor to seek relief of the Heir as accords Iuly 1. 1662. Baillie contra Hendrison Executors were found lyable for an Annual payment for years after the defuncts death February 5. 1663. Hill contra Maxwel In the Executry a Child dying before Confirmation of the Mothers third the Father being alive was found not to transmit to the Father as nearest Agâ—at but to the Mothers brother and that it was not in the case of the Legitim from a Father which is Transmissible without any Confirmation or adition to the Succession February 17. 1663. Forsyth contra Paâ—oun Executry was found bipartite where there was but one Child which was Forisfamiliat and provided without alleadging in satisfaction of the Bairns part seing here the Child offered not to confer February 18. 1663. Dumbar of Hemprigs contra Frazer An Executors proper Creditor competing with a Creditor of the Defuncts both on Arrestments of a part of the Defuncts Inventary the Defuncts Creditor was preferred to the Executors doing more diligence especially before this Sum was established in the Executors person by Decreet Iuly 8. 1664. Veâ—ch contra
1662. Children and Creditors of Bryson OATH IN LITE â— was admitted for proving of Ware in a Pack given in custody where the keeper opened the same though he made Inventary before Witnesses by a Baillies Warrant Ianuary 3. 1667. Packman contra Bran. OATH QVALIFIED was not sustained importing a compensation yet the â—ame was admitted to be proven as an Exception at advising of the cause December 9. 1664. Lermont contra Râ—ssel AN OBLIGATION by three persons to cause a Minor releave a sum not bearing conjunctly and severally was found not to oblige every one in solidum as being for an indivisible Fact but resulting in a divisible sum Iuly 16. 1669. Dennistoun contra Semple of Fulwood OFFER of the remander of a Sum not being special and not being Consigned was found not to purge a Failzie December 19. 1661. Deuar contra Countess of Murray Offer conditional to pay a suâ— for a Mother on condition it were at such a time and place and were made known whether or not it were accepted was found not obligatory after the Mothers death unless the condition had been fulfilled then 〈◊〉 Iune 24. 1664. Allan contra Colner Offer of Caution to a Wodsetter that he ought to quite possession or restrict to the Annualrent was sustained though made at the parties dwelling House when he was out of the Countrey seing the Act of Parliament did not require that offer to be by Instrument and though the instrument of offer did not bear a Procuratory to him that made the offer the said procuratory being now produced Iune 16. 1671. Lord Loviâ— contra Lord Mcdonald THE OFFICE of a Commissar Clerk was found noâ— to be annulled by his absence for a time out of the Countrey and being denunced sine crimine February 6. 1666 Archbishop of Glasgow contra Logan An Office of a common Servant viz. a Town Clerk being given ad vitam was found to imply a tacite condition to be also ad culpam and that such a fault did resolve the same as was of knowledge and consequence February 14. 1665. Town of Edinburgh contra Thomson OVERSEâ—RS were found lyable for nothing if they intrometted not Ianuary 10. 1665. Swintoun contra Norman PART AND PERTINENT of Lands disponed by a Minute was found to extend to a common Paâ—â—urage in a Muire possessed as pertinent of the Land in the Bargain and that the Writes upon the extension of the Minute ought to bear the â—ame expresly February 14 1668. Borthwick contra Lord Borthwick Part and pertinent cum pascuis pasturn in a Charter given by the King to the Feuars of his Property was found to carry common pasturage in the Muire of the Barony which being now possessed 40. years by the Feuars of the Barony is presumed to have been so at the time of the Charter being past memory and that interruptions of any other Right exclusive of this common pasturage was sufficient to preserve the same February 15 166â— Laird of Haining contra Towâ— of Selkirk â—art and pertinent was not excluded albeit an alleadgeance was proponed on an old Seâ—sine of the Lands in question as being separatum tenementum the Seasine being â—ound null and no Title for Prescription February 15. 1671. Earl of Argile contra Laird of Mcnauchtoun ALL PARTIES HAVING INTEREST not necessary to be cited at the Mâ—râ—at Cross in the Declarator of the Expyring of a Feu ob non solutum 〈◊〉 though the Summons bear warrand for the citation December 1. 1664. Eaâ—l of Sâ—therland contra Gordoun PARIOIDE doth not infer Treason as against the Act of Parliament against murder under Trust which is meaned by paction in reâ—pect of the special Act of Parliament against Paricide which doth not exclude the Paricides Collaterals but him and his descendents from the succession of the slain which therefore cannot belong to the Fisk Ianuary 22. 1663. Zeaman contra Oliphant PASSING FROM A REASON of Suspension pro loco tempore was found not to hinder the proponing of the same against that Decreet and against an Appryzing thereon the matter being yet illiquid and a singular Successor in the Appryzing Iune 17. 1664. Laird of Tulliâ—llan contra 〈◊〉 and Braâ—foord Passing from a Reason of Compensation and taking up a Writ for instructing thereof was admitted before Extracting of a Decreet though the Writ was long in the Chargers hand not being judicially given up to him and that another emergent exception might now be admitted Iuly 14. 1664. Lord Balmerino contra the Creditors of Dick. PAYMENT made before the hand was found Relevant against a singular Successor the Kings Donaâ—ar of Forefaâ—lture because it was but of one Term and so accustomed by the Baroâ—y to pay at the Entry and be free at the â—sh Ianuary 7. 1662. Earl of Laudâ—â—dail contra Tennents of Swintoun Payment made bâ—na fide to Baiâ—ns of a Sum by a Disponer in â—avours of these Bairns was sustained though after Reduction raised unless a Reason had been Libelled against that which was ordained to be payed to Bairns and shown before payment Iuly 14. 1662. Mâ—ntgomerie of Mackâ—ichill contra Wallace Payment made bona fide to a Procurator was thought to be Relevant though the Procuratory should be improven if therein there did appear no ground suspition to have put the Debitor in maâ—â— fide February 1. 166â— Elphingstoun of Selms contra Lord Rollo and Laird of Niddrie Payment made by Heretors to Ministers of their Stipends during the time they Preached and before any Process against them was found to liberate the Heretors notwithstanding they were outed by the Act of Parliament anent these Ministeâ—s who entered since the year 1649 and had not gotten Presentation and Collation whereunto the Heretors â—eâ—e not obliged tâ— inquire seing the Ministers were suffered to Preach without challenge February 10. 1666. Collector of the vacant Stipends contra the Heretors of Mayâ—ole and Giâ—van Payment made bâ—na fide was found not to extend to payment made by a Tennent before the time nor to a Sub-Tenent to the Tennent before the Term February 5. 1667. Lady Traquair contra Howaâ—son Payment made of a Decreet by giving Bond of borrowed money and taking Discharges of the Decreet was found no Homologaâ—ion or Transaction but that after the party might quarrel both Decreet and Bond in consequence unless abatement were gotten upon Transaction of the Sum in the Decreet seing it was not voluntarly done but upon Caption Iâ—ly 3. 1668. Rew contra Houstoun Payment of the Rent of a Shop was sustained being a Taâ—k set by a Father to a Tennent for the annualrent of a sum though the Father had given a Right to his Son reserving his own Liferent seing he set the Tack as Feear and though the Son after his death warned only by Chalking the Door without any other intimation the Tacks-man was Liberate of the Rent for his Annualrent as bonae fidei possessor by his Tack till he was cited on the Sons Right February 16. 1669.
a Charge to enter Heir Ianuary 2. 1667. Olephant contra Hamiltoun Poinding of the Ground was sustained on an annualrent although there was no possession thereon for above seven years without Declarator and though a posterior appryzer was in possession more than seven years which was not found to give a possessory judgement against a prior annualrent Ianuary 1. 1668. Old Lady Clerkingtoun and the young Lady A PRECEPT was â—ound to oblige the Granter thereof it not being answered albeit it did not bear value received seing it was upon an other Precept direct to the Drawer of the last precept and so was an acceptance Ianuary 22. 1667. Findlason contra Lord Cowper A precept of Seasine upon obedience was found not to hinder the Reduction nor improbation nor to import acknowledgement of the Defenders Right February 20 1662. Laird of Mochrome contra Laird of Martoun Ariol and others PREMONITION by a Procurator was sustained though it bear not the Procuratory shown seing it bear not it was called for if it now be shown or proving by the other parties oath that a procuratory was shown Ianuary 18. 1662. Veatch contra Lyel of Bassendoun PRESCRIPTION was found only to run from the Term of payment of Bonds not from the date and that the Interruption by Citation upon the first Summons is sufficient to interrupt though there was no continuation or second summons February 17 1665. Butter contra Gray Prescription on 40. years silence was found not effectual against a Wife pursuing the Cautioner for her â—uâ—band in her Contract of Marriage obliging to imploy a Sum to her in Liferent quia non valâ—bat agere during her Husbands life who would not concur and therefore the prescription was compted from his death and yet the other obligement in the same Contract in favours of the Husband obliging the Wifes Father to pay the Tocher was found to prescribe from the date Iuly 5. 1665. Mckie contra Steuart Prescription was â—ound interrupted by a citation albeit not so legal but that the Defender might have excluded the pursuit upon informality especially being in re antiqua and where the custom of the Regality did not appear Novem. 25. 1665. White contra Horn. Prescription was â—ound neâ—er to extend to exclude any person to serve themselves to any of their predecessors if no other hath been served before in which case the Retoure cannot be quarrelled but within 40. years if deduced after the year 1617. or if before then it must be quarrelled within fourty years or else it must prescribe by the general Act of prescription November 28. 1665. Young contra Iohnstouns Prescription by not paying Teind for fourty years was found not to take away the Right of the Teind totally having been once payed but only as to years precâ—eding the fourty years February 7. 1666. Earl of Paâ—mure contra Parochioners Prescription non câ—rcit contra non valentem agere which is understood of Actions which might have attained possession and not of Declarators or Reductions February last 1666. Earl of Lauderdail contra Viscount of Oxenfoord Prescription was found interrupted by a Decreet of poynding the Ground though therein the Heretor was not Called Iuly 15. 1666. Sinclar contra Laird of Hâ—rdmanstoun Prescription of an oblation of a Cautioner bound conjunctly and severally with the principal was not inferred by the Creditors not getting payment or pursuing the Coutioner for fourty years which did not presume he past from him but his getting annualrent from the principal within the fourty years was â—ound sufficient to preserve the Bond as to both December 18. 1667. Gairns contra Arthure Prescription of a Tack of Teinds not cled with possession for more than 40. years from its date was â—ound not to annul that Tack but as to years before possession and a prorogation of the Tack was sustained as to times coming Ianuary 19. 1669. Earl of Athole contra Laird of Strowan Prescription was not sustained upon 40. years uninterrupted possession and one single Seasine as the Title of prescription unless according to the Terms of the Act of Parliament singular Successors produce as their Title not only a Seasine but a Charter or Precept as the warrand thereof and that universal Successors produce one or more Seasines upon Retoures or Precepts or clare constat continuing and standing together by the space of fourty years which standing together was not understood of standing unreduced but standing not fallen in the hands of the Superior by Noiâ—-entry so that either the obtainer of the Seasine behoved to live after the â—ame and possess 40. years in which case one Seasine were sufficient or if he dyed within the fourty years his Heirs possession were not sufficient by that Seasine bâ—t behoved to be renewed and so to continue Seasines as well as possession for fourty years from the beginning of the first Seasine but no necessity was found to produce the Retour or Precept where Possession was by Seasines one or more the Seasines as well as Possession being continued for fourty years February 15. 1671. Earl of Argile contra Laird of Mâ—naughtoun Prescription of an annualrent constitute indefinitely out of two distinct Tenements was found not incurred as to the one in respect of the annualrenters uplifting the whole annualrent out of the other in the same manner as payment of annualrent by the principal Debitor preserves the obligement of the Cautioners though they payed no annualrent for fourty years and the Heretor distressed was found to have proportionable relief out of the other Tenement though both were now in the hands of different singular Successors and required different Seasines Iuly 22. 1671. Lord Balmerino contra Hamiltoun of Litle-prestoun Prescription of annualrent mortified to an Hospital was sustained by freedom there from fourty years without consideration of the pious use or that the Poor had yearly Overseers chosen and were not esteem'd as Minors or without any abatement of the time of the Troubles when there could be no Process Iune 30. 1671. Bead-men of the Magdalen Chapel contra Drysdail Prescription of the annualrent of a Bond was elided because the principal sum was payed to the Feear and it was sufficient that the annualrent was due within fourty years preceeding that payment which annualrent was due to the Executors of a Liferenter this was stopped and altered as to this that it was not found relevant to preserve the annualrents that were within fourty years before the last payment but that they were within fourty years before the intention of the Cause all annualrents or actual prestations preceding that fourty years prescribe because every years payment is a several obligation and that hath no effect as to the rest the first interlocutor was Iuly 22. 1671. And the second February 7. 1672. Blair of Balhead contra Blair of Denhead PRESVMPTION of allowance was sustained to take away publick burdens payed by a Tennent though his Tack bear to be relieved thereof and he produce
to the Whitsâ—nday at which the Buyer was to Enter February 22. 1670. Murray of Auchtertyre contra Drummond A Disposition of Lands and universal Legacy both contained in one Infeftment in which there is a Sum provided to Children not being particularly annexed either to the Disposition of Legacy the Disposition of Lands being found null as being in a Testament the universal Legacy was found burdened with no part of the Provision seing by the Nullity of the Disposition the Children had Right to their Portion of the Lands which exceeded the Sum they were provided to February 1. 1671. Pringle contra Pringles A Disposition granted by a Person who was insolvent and thereafter notoriously Bankrupt was not reduced as not proceeding upon a necessary cause or as being a preference of one Creditor to another none having done diligence in respect the Disposition was granted for a Bargain of Victual sold and delivered a Month before the Disposition in question whereby the Disponer was alleadged to become Bankrupt but it was not decided whether a notorious Bankrupt could after he was so known prefer one Creditor to another when none of them had done diligence Iuly 20. 1671. Laird of Birkenâ—â—g contra Grahame of Craig A Disposition of Lands was found to imply an Assignation to the Reversion of a former Wodset and that it needed no intimation the Infeftment on the Disposition being Registrate though a posterior Assigney had first redeemed November 18. 1664. Guâ—hrie contra Idem December 5. 1665. Beg contra Beg. DIVISION of Lands and a Muire betwixt Co-heirs was reduced upon a considerable inequality though not near the half value and though the division proceeded upon the Reducers oâ—n Brief of division December 2. 1669. Monteith of Corruber contra Boid A DONATION was not presumed by a Mother to her Child by giving out Money in her Name with power to uplift and re-imploy in so far as she was debitor to the Child but pro reliquo December 20. 1661. Fleming contra her Children Donation of Aliment by a Mother to her Son who had no other means was presumed to Liberate him from Repetition but was not found so against his Step-Father for the years after his Marriage Iune 25. 1664. Melvil contra Ferguson Donatiâ— inter Virum uxorem was found Revockable albeit it was not a pure donation but in lieu of another quo ad excessum seing it was notabilis excessus November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband Doâ—atio inter virum uxorem was sustained to recal the acceptance of an Infeftment in satisfaction of the Wifes Contract February 12. 1663. Relict of Morison contra his Heir Donation betwixt Man and Wife Revockable was found not to extend to a Contract of Marriage though made up during the Marriage there being none before November 22. 1664. Mâ—gil contra Ruthven of Gairn Donatio inter virum uxorem was found not revockable if it were granted upon consideration of what fell in by the Wife after her former Provisions though that would also have belonged to the Husband jure mariti yet might be the ground in gratitude of a Donation Remuneratory November 23. 1664. Halyburtoun contra Porteous Donatio inter virum uxorem being in question where there was no Contract of Marriage but an Infeftment of all that the man then had and after a second Infeftment but stante matrimonio The Lords found that the first was valide there being no Contract before but they reduced the second finding no remuneratory provision of the Wife to answer both November 23. 1664. Inter eosdem Donatio inter virum uxorem was found not to reach an Infeftment of Lands to warrand and make up the principal Lands in the Contract such a Rent albeit there was but a personal Obligement in the Contract and that the Obligement to Infeft in Warrandice was therein satisfied and extinct November 24. 1664. Nisbit contra Murâ—ay A Donation was presumed of Aliment by a Goodfire to his Daughters Child who was long in his House and after the Mothers death continued still without any agreement with the Father Iuly 21. 1665. Ludquharn contra Geight Donatio inter virum uxorem was found relevant to recal a Bond granted by a Hâ—â—band to his Wife bearing that he thought it convenient that they should leave a part and therefore obliged him to pay a Sum yearly for her aliment albeit it bear also that he should never quarrel or recal the same as importing a Renunciation of that priviledge February 6. 1666. Living stoun contra Beg. Donation betwixt Man and Wife was found to extend to a Charter bearing Lands and a Miln where the Contract of Marriage bear not the Miln and that it was not as an Explication of the parties meaning and so was revocked by a posterior disposition of the Husband to another February 5. 1667. Countess of Hume contra the Tenents of Oldâ—aâ—â—us and Hog Donation betwixt Man and Wife was found not to extend to a donation by a Husband to his Wifes Children of a former Marriage of her Goods belonging to him jure mariti and so was not revockable as done to the Wife though to her Bairns at her desire Ianuary 15. 1669 Hamiltoun contra Baynes A Donation by a Husband to his Wife by a Tack of his whole Lands not Liferented by her and bearing for Love and Favour and for enabling her to Aliment her Children and bearing a small duty in case there were Children and the full Rent if there were none was found valide as being remuneratory to make up the defect of the value which by Contract her Liferent Lands were obliged to be so much worth Superceeding to give answer wheither the Tack would be null at the instance of Creditors lending Sums after the Tack as latent and fraudulent if it were not proven remuneratory or wheither a donation betwixt Man and Wife is null and pendent as a Bairns Portion till the Husbands death and if the borrowing thereafter would prejudge the same there being no Lands left un-liferented thereby Ianuary 26. 1669. Chisâ—holm contra Lady Braâ— Donation betwixt Man and Wife revockable was found not to extend to Wife Subscribing her Husbands Testament by which her Liferent Lands were proâ—ided to their Daughter which was not â—ound alike as if it had been in favours of the Man himself who is naturally obliged to provide his Daughter Iuly 12. 1671. Murray contra Murray Donation by a Man to his Wife by a great additional Iointure where she was competently provided before was found not to be taken away by a posterior Testament made in lecto providing a less additional Iointure without mention of the former and being conditional that the said last addition should be at the Testators Fathers disposal if he returned to Scotland and he having returned and having Ratified the fiâ—st additional Ioynture the same was Sustained Iuly 18. 1671. Countess of Cassils contra Earl of